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.
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.