IPC Case Notes - Information Access
The Information and Privacy Commission NSW (IPC) publishes case notes to highlight significant and interesting cases from the IPC's jurisdictions.
See below for case notes relating to Information Access.
IPC case notes are intended to serve public sector agencies and practitioners from the private, government and university sectors. The case notes are current at the date published. IPC case notes are not intended to replace legal advice, which should be sought as appropriate.
Wojciechowska v Commissioner of Police, NSW Police Force (No 2)  NSWCATAP 104
Costs were awarded against the appellant. Costs orders are rare in GIPA proceedings, but under s. 60(2) of the Civil and Administrative Tribunal Act 2013, can be awarded if ‘special circumstances’ are established.
Robertson v Deputy Secretary, Local Government, Planning and Policy  NSWCATAP 88
The conclusive presumption against disclosure of information that relates to an agency’s complaint handling and investigation functions is limited by the scope of the prescribed functions. In each instance, the agency must first determine the functions granted to it prior to determining whether the information sought relates to a prescribed statutory complaint handling or investigative function.
Webb v Port Stephens Council  NSWCATAD 404
The GIPA Act requires agencies to provide access in the way requested by the applicant unless to do so would involve an infringement of copyright. It is appropriate for an agency to provide view-only access to information where providing that information would contravene the Copyright Act 1968 (Cth). Copyright attaches to the IPC’s training materials.
Ireland v Central Coast Council  NSWCATAD
The decision confirms that the reference to “electronic process” in the statutory definition of “record” in cl. 10 of Schedule 4 to the GIPA Act may encompass more complex digital forms of information such as algorithms, software specifications and source code. Agencies are required to provide evidence to support why information in those forms is not held, and not merely describe the information.
Eric Anthony Foster v Department of Planning and Environment  NSWCATAD 235
Information which would not ordinarily be personal information under the GIPA Act may become personal information when combined with other information or enquiries.
O’Brien v Secretary, Department Communities and Justice  NSWCATAD 100
As government increasingly adopts digital technology, it has a duty to implement administrative practices that safeguard the legislated commitment to open government and the fundamental right of access to information. This includes responding to formal and informal access applications in a comprehensive manner that takes into consideration information used to develop and support digital solutions including algorithms, source code, test suites, data sets and variables. This matter highlights the importance of preserving access rights where an agency enters into a contract with a private sector entity and the potential for curtailment of a citizen’s right to access government information.
Walton v Eurobodalla Shire Council  NSWCATAD 46
The manner in which an agency routinely saves records, such as emails, to its normal electronic record keeping system does not ordinarily enliven the discretion to extend the decision period under the GIPA Act by 10 days. The process of retrieval from a records archive must involve some difficulty because an agency is required to undertake an act of retrieval from a place where public or historical records are kept, for the discretion to be enlivened.
Jeray v Blue Mountains City Council  NSWCATAP 310
The Appeal Panel confirmed that the “identification requirement” in section 41(1)(e) of the GIPA Act in finding validity of an access application should not be confused with an agency’s view of the reasonableness of the application and its ability to perform its functions under the GIPA Act, whether the application contains a broad scope of information, and the time required to identify the information.
Walker v Northern Beaches Council  NSWCATAD 8
The decision explains the power of the Tribunal to deal with an application by a person restrained from making an access application under s. 110(1) of the GIPA Act. Section 110(4) requires a three-step process, including that prior notice to the agency and Information Commissioner is a jurisdictional fact that must exist before the Tribunal’s jurisdiction can be enlivened to deal with an application for approval to make an access application.
Hickey v Secretary, Department of Education  NSWCATAD 306
The Tribunal confirmed that the factors in s. 60(3A) must outweigh the considerations in s. 60(3B) in determining whether dealing with the access application would require an unreasonable and substantial diversion of the agency's resources under s. 60(1)(a). The Tribunal applied a weight to the agency's evidence in support of the s. 60(3A) factors and weighed these against the general public interest in favour of the disclosure of government information, and the demonstrable importance of the information to the applicant under s. 60(3B). The Tribunal confirmed that while it requires evidence of the demonstrable importance of the information to the applicant, the onus is on the agency to consider this in the weighing exercise.
Redfern Legal Centre v Commissioner of Police  NSWCATAD 288
Government information is limited to information which exists at the time of the access application. The obligation on an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. An agency is not obliged to create a new record in response to an access application to bring the information sought into existence.
Wojciechowska v Commissioner of Police  NSWCATAP 173
The decision introduces a five-step approach to the Tribunal’s review of an agency’s decision under s. 58(1)(b) that the information sought under the GIPA Act is not held. The decision emphasises that the agency’s familiarity with its record management and retrieval systems generally makes the agency best placed to assess whether the information exists and is held.
Christopher v Independent Commission Against Corruption  NSWCATAD 256
The decision confirms that agencies listed in Sch. 2 are not exempt from the operation of the GIPA Act; and that an access application seeking “excluded information” is not valid by operation of s. 43(2) only to the extent that the information sought is prescribed by cl. 2 of Sch. 2. Excluded information under cl. 6 of Sch 1 must be determined in accordance with s. 58(1)(d) if the agency to which the excluded information relates consents to its disclosure.
Tallawoladah Pty Ltd v Department of Planning, Industry and Environment  NSWCATAD 248
Where a review is brought by a third-party objector, of a decision to provide access to government information in response to an access application, the burden of establishing there is an overriding public interest against disclosure of information lies on the applicant for review. A mere statement that disclosure could reasonably be expected to have a particular effect is insufficient. There must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect.
McEwan v Port Stephens Council  NSWCATAD 110
The decision recognises the importance of information access rights in the NSW statutory scheme under the GIPA Act and by operation of s. 5 of the PPIP Act. The Tribunal explained that the GIPA Act places a high onus on agencies to provide evidence to override the presumption in favour of disclosure under ss. 5 and 12. The decision promotes the overriding objective given to public accountability under the GIPA Act, particularly because of the mandate for making “open access information” publicly available. The decision highlights the Tribunal’s view that maintaining a Public Register is of fundamental importance in the public accountability of local councils’ decision-making and the conduct of officers and employees of councils who may be involved in such decision-making.
Ruyters v Commissioner of Police  NSWCATAD 41
The GIPA Act and the Telecommunications (Interception and Access) Act 1979 (Cth) can be read together without offending section 109 of the Constitution. It is only in circumstances where an agency finds that there is no overriding public interest against disclosure that an access applicant must be provided with access to information. If that is the case, then there may be an inconsistency between the provisions of the GIPA and TIA Acts which would require consideration of section 109 of the Constitution.
Zonnevylle v Department of Customer Service; Zonnevylle v Secretary, Department of Education  NSWCATAD 35
An application for government information under the GIPA Act is actually received by an agency according to s. 41(3) when an application sent by post arrives, an application is lodged in person, or an email attaching the application is received by the agency’s designated email address. The actual receipt is not determined by whether an agency is able to act upon the application in some way.
Miriani v Transport for NSW  NSWCATAD 16
In conducting reviews, the Tribunal is generally not concerned with the motivations of applicants seeking access to government information. The GIPA Act establishes a presumption in favour of disclosure of government information and does not require that access applicants disclose their motivations for seeking access, or the use of that information once obtained. The Tribunal followed the Appeal Panel’s analysis of who holds the burden of proof with respect to decisions that information is not held under the GIPA Act in Wojciechowska v Commissioner of Police  NSWCATAP 257.
Ruyters v Commissioner of Police  NSWCATAD 223
Agencies must apply the considerations set out in section 60(3A), and any other relevant considerations for processing applications, when deciding to refuse to deal with an access application pursuant to section 60(1)(a). These considerations must be weighed against the matters in section 60(3B) and must be found to outweigh the general public interest in favour of disclosure of the information, and the demonstrable importance of the information to the applicant.
Department of Communities and Justice v Zonnevylle  NSWCATAP 126
An application for government information under the GIPA Act cannot be severed into both valid and invalid parts because an application must comply with all of the requirements in section 41(1)(a)-(e) to be a valid "access application" within the meaning of section 4 of the GIPA Act.
Taylor v Destination NSW  NSWCATAD 137
The Tribunal referred the agency to the Information Commissioner under section 111 of the GIPA Act as it was satisfied that the matter indicated a systemic issue relating to the determination of access applications. The Tribunal confirmed that it only needs to find an indication or a possibility that a systemic issue exists, and it is at the discretion of the Information Commissioner, through conducting any investigation or audit, to confirm the existence of the systemic issue.
Medlyn v Commissioner of Police  NSWCATAD 125
An agency relying on section 60(1)(d) of the GIPA Act is required to establish that the information in issue is or has been the subject of a subpoena or other order of a court for the production of documents, and that the information is available to the applicant as a result of having been produced in compliance with the subpoena or other order. Where the reason under section 60(1)(d) is established, the agency has a discretion to decide to refuse to deal with an application.
Case Summary on Automated decision making and access to information under the GIPA Act
This case explores the right to access information in the context of automated decision making using software developed by a contractor supplying services to a NSW government agency. The case highlights the need for vigilance to promote transparency and accountability by government
Betzis v Commissioner of Police  NSWCATAD 71
The Tribunal affirmed the agency’s decision that the information in a coronial brief to the NSW Coroner was excluded information under the GIPA Act, and the fact that information may have already been released to the applicant in other circumstances did not change the character of the information as ‘excluded information’.
AIG Australia Ltd & NM Insurance Pty Limited v Commissioner of Police, NSW Police Force  NSWCATAD 84
The Tribunal set aside the agency’s decision to not release a certificate of blood sample analysis to the insurer, finding that the insurer’s personal factors and motives for determining an indemnity claim outweighed the significant public interest consideration against disclosure with respect to this personal information.
Leydon v Commissioner of Police  NSWCATAD 267
The Tribunal set aside the agency’s decision in part because it considered that the section 55 personal considerations provided compelling grounds for providing access; and the agency’s evidence did not establish the relevant factual matters that explain how the impact of the release of the information would achieve the effects in the various public interest considerations claimed
Sneesby v Shoalhaven City Council  NSWCATAD 234
The Tribunal set aside the decision of the agency and made a decision that it provide access to the withheld information sought by the applicant, save for one document subject to legal professional privilege. Before the decision came into effect, the Tribunal made orders allowing third parties who had not been properly consulted under section 54 of the GIPA Act the right to appear and be heard.
Jackson v University of New South Wales  NSWCATAD 224
In this decision, the Tribunal considered the University’s claim of legal professional privilege over 269 email chains, in its decision to withhold access to information pursuant to clause 5 of Schedule 1 of the GIPA Act. The Tribunal found that most of the email chains were privileged but found that emails which were consultations for administrative purposes were not subject to privilege.
Coleman v Medical Council of NSW  NSWCATAD 207
In this decision, the Tribunal considered an order for costs in proceedings about a reviewable decision under the GIPA Act and found that the respondent did not prolong unnecessarily, the time taken to conduct and finalise the GIPA proceedings. The Tribunal noted the matter involved a large number of documents over an extended time period, and the requirements of clause 1 and 6 of Schedule 1 of the GIPA Act.
McDonald v Commissioner of Police, NSW Police Force  NSWCATAD 66
In this decision, the Tribunal referred to the ‘mosaic effect’ and considered whether the applicant was using numerous GIPA applications for information about police complaints with the aim of discovering more than he was entitled to.
Office of Environment and Heritage v Scenic NSW Pty Ltd  NSWCATAP 176
This Appeal Panel decision considered the jurisdiction of the Tribunal to review agency decisions under Part 5 of the GIPA Act. An agency’s acknowledgement to an access applicant of a requirement to withhold access to information pending a third party review is not a decision that is reviewable by the Tribunal.
Destination NSW v Taylor  NSWCATAP 123
This Appeal Panel decision confirms that an agency must justify its decision about information it has withheld by applying the public interest test in section 13 of the GIPA Act to the information; and this involves identifying the relevant considerations in favour of and against disclosure, and indicating the strength of each public interest consideration.
Sandy v Kiama Municipal Council  NSWCATAD 49
The Tribunal affirmed the decision of the agency to provide access to information by way of inspection, on the basis that to provide a copy of the records containing the information, as sought by the Applicant, would infringe copyright under the Copyright Act 1968 (Cth).
DNM v NSW Ombudsman  NSWCATAP 77
This Appeal Panel decision about ‘excluded information’ under clause 2 of Schedule 2 of the GIPA Act confirms that an agency must broadly consider the issue of whether information relates to the excluded information of an agency, which is subject to the conclusive presumption of an overriding public interest against disclosure.
Broadribb v Medical Council of New South Wales  NSWCATAD 213
There is a conclusive presumption of an overriding public interest against disclosure of information relating to the exercise of functions by the Health Care Complaints Commission
Whitaker v Illawarra Shoalhaven Local Health District  NSWCATAD 183
Some public interest considerations favouring disclosure may be significant and merit additional weight in matters where there is an apparent conflict between the conclusions reached in different types of investigations; and claims of confidentiality may depend on the type of investigation undertaken.
Seven Network Limited v South Eastern Sydney Local Health District  NSWCATAD 210
Elements of a person’s gait or body shape in CCTV footage may not be sufficiently distinctive alone to prevent the release of CCTV footage where the face, head, neck and any identifying marks such as tattoos are concealed by pixelation.
Zonnevylle v Department of Education  NSWCATAD 101
In establishing that searches for information are reasonable, an agency may demonstrate: the use of identifiers provided by an applicant; that officers conducting searches turned their minds to where that information may be held in the agency; and that search officer declarations have been completed.
Turner v NSW Health Pathology, Forensic & Analytical Science Service  NSWCATAD 114
When an applicant has provided identifiers or search terms in an access application or in later discussions with the agency, those search terms or identifiers inform and assist the agency in conducting searches. The Tribunal observed inconsistencies in the Respondent’s reasons for the decision.
Pallier v NSW State Emergency Service  NSWCATAD 293
The Tribunal considered the breadth of the public interest considerations for and against disclosure applied to workplace investigation reports, and in doing so found that the balance in favour of disclosing certain aspects of workplace investigation reports may outweigh considerations against disclosure.
Commissioner of Police v Danis  NSWCATAP 7
The Appeal Panel distinguished between preliminary decisions and final decisions under the Government Information (Public Access) Act 2009 (GIPA Act), and provided guidance in relation to a decision to refuse to deal with an access application under section 60 of the GIPA Act.
Bayne v Department of Premier and Cabinet  NSWCATAD 233
Applicant conducted proceedings in a way that unnecessarily disadvantaged the Respondent. Tribunal found special circumstances warranted an award of costs, and ordered the Applicant to pay the Respondent’s costs of $4,575.35 Bayne v Department of Premier and Cabinet  NSWCATAD 233
Page v Southern Cross University  NSWCATAD 199
Discounting processing charges and refusal to deal further with an access application when an advance deposit has not been paid Page v Southern Cross University  NSWCATAD 199
Zonnevylle v Department of Education and Communities  NSWCATAD 49 and Zonnevylle v NSW Department of Finance and Services  NSWCATAD 47
The Tribunal dealt with the application of section 112 of the GIPA Act, which enables the Tribunal to refer to the relevant Minister any circumstances where an officer of an agency may be thought to have acted inappropriately with respect to his or her functions under the GIPA Act.
Shoebridge v Forestry Corporation  NSWCATAD 93
The Tribunal identified the steps for a decision maker in considering whether the information applied for is of special benefit to the public generally Shoebridge v Forestry Corporation  NSWCATAD 93
Abdelaziz v StateCover Mutual Ltd  NSWCATAD 1
The Tribunal considered the language of the GIPA Act to be clear in assisting with a decision that a body is not an agency for the purposes of the GIPA Act Abdelaziz v StateCover Mutual Ltd  NSWCATAD 1
Mino v Legal Aid NSW  NSWCATAD 24
The Tribunal does not have jurisdiction to require an agency to create a new record or to review an agency’s decision not to include information on its disclosure log Mino v Legal Aid NSW  NSWCATAD 245.
Commissioner of Police, NSW Police Force v Barrett  NSWCATAP 68
Whether an agency can substitute a new decision after a review application has been filed, whether in decisions to refuse to confirm or deny an agency is obliged to give detailed reasons and the weighing of considerations when an agency is seeking to refuse to confirm or deny information is held Commissioner of Police, NSW Police Force v Barrett  NSWCATAP 68.
Section 110 restraint orders Pittwater Council v Walker  NSWCATAD 34 and Palerang Council, Queanbeyan City Council & Goulburn Mulwaree Council v Powell  NSWCATAD 44
In certain circumstances, public interest considerations favour orders restraining persistent and unmeritorious applications requiring an unreasonable and substantial diversion of resources by an agency.
CCB v Department of Education and Communities  NSWCATAD 145
Who is an aggrieved person, what is required to establish legal professional privilege, and can a work health and safety incident form be released to an applicant.
National Tertiary Education Union v Southern Cross University  NSWCATAD 151
Whether reviewable decision about imposing processing charge may be made prior to the application being decided.
D’Adam v New South Wales Treasury and the Premier of New South Wales  NSWCATAP 61
Distinguishing between 'information' and 'document’ and the assessment of the dominant purpose in relation to Cabinet information.