ALQ June 2022 GIPA decisions

Issue: June 2022

GIPA decisions

Unreasonable and substantial diversion of resources ground available to be raised for the first time upon review

Access the decision: EHW v Secretary, Department of Education [2022] NSWCATAD 140.

The applicant applied for access to information about his children and himself under the Government Information (Public Access Act) 2009 (GIPAA) in relation to incidents in 2017-18 at his children's former primary school. The incidents resulted in the applicant being denied entry to the school pursuant to the Inclosed Lands Protection Act 1901 and interim and final care orders being sought and made under the Children and Young Persons (Care and Protection) Act 1998 (the CYPCP Act).

The respondent refused to provide the applicant with access to some of the information on the basis that the information was subject to an overriding public interest against disclosure (s. 29 of the CYPCP Act) and refused to deal with the remainder of the application because he had already been provided access to the information in other court proceedings and could obtain access to the information sought via those other proceedings.

At the hearing, the respondent did not press the latter ground as the other proceedings had been finalised by then but relied upon an additional ground, ie, that it would amount to an unreasonable and substantial diversion of resources given the exponential increase in the number of access applications received by the agency in recent years and the time spent dealing with the application to date.

The Tribunal affirmed the respondent's decision and determined that the respondent's decision to refuse to deal with the remainder of the access application was the correct and preferable decision on an alternative basis, namely, that it would involve an unreasonable and substantial diversion of resources.

Excluded information and GIPAA

Access the decision: Christopher v Independent Commission Against Corruption [2022] NSWCATAP 118.

The appellant sought access to 15 categories of information under GIPAA, broadly relating to the amendment of the Independent Commission Against Corruption Act 1998 (the ICAC Act) following the High Court judgment in ICAC v Cunneen.

ICAC determined that the access application was invalid because it sought 'excluded information' relating to its 'corruption prevention, complaint handling, investigative and reporting functions' (s. 43; Sch 2 cl. 2) on the basis that that ICAC had lobbied the government regarding the amendment of the ICAC Act, which did not amount to a discharge of ICAC's investigative or corruption prevention functions. It was also submitted that the Tribunal erred in not considering the parties' submissions about s. 111 of the ICAC Act, which is an overriding secrecy law under Sch. 1.

The Appeal Panel dismissed the first ground on the basis that GIPAA is directed to the information held by an agency, not the agency's conduct and the second ground, finding that the Tribunal did not need to consider the parties' submissions on the ICAC Act given its conclusions about excluded information.

Requesting access to 'excluded information'

Access the decision: Bradford v Commissioner of Police (No 2) [2022] NSWCATAP 143

The appellant appealed the Tribunal's decision under GIPAA, refusing access to information relating to 'Operation Mocha', an investigation carried out, by amongst others, the NSW Crime Commission (the NSWCC) into the operations of a drug syndicate in 2004/05.

Relevantly, the Tribunal had found that the information was 'excluded information' of the NSWCC, within the meaning of cl. 6 of Sch. 1 to GIPAA and, accordingly, that there was a conclusive presumption of an overriding public interest against disclosure of that information.

The Appeal Panel refused the appellant leave to appeal and dismissed the appeal. It was held that the appellant's proposed construction of cl. 6(2) of Sch. 1 to GIPAA (namely, that the NSWCC did not have sufficient information to make an informed decision as to whether to consent to the release of the excluded information) was contrary to the purposes of the Act. The Appeal Panel held that the appellant's submissions would have required the Tribunal to review a non-reviewable decision, that is, the NSWCC's decision to refuse to consent to the disclosure of the excluded information. It also held that the release of similar, or the same, information by another agency, did not prevent the NSWCC from refusing to consent to the disclosure of the excluded information, nor the respondent from refusing to release that information.

If you have any questions about the contents of this newsletter, please contact john.mcdonnell@cso.nsw.gov.au.

Other decisions in this issue

Last updated:

09 Jun 2023