Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jeray v Blue Mountains City Council [2021] NSWCATAP 310 Hearing dates: 6 August 2021 Date of orders: 8 October 2021 Decision date: 08 October 2021 Jurisdiction: Appeal Panel Before: Hennessy ADCJ, Deputy President C Mulvey, Senior Member Decision: (1) Orders 1 and 2 made by the Tribunal on 17 March 2021 are set aside. (2) In substitution for those orders, pursuant to s 63(3)(d) of the Administrative Decisions Review Act 2013 (NSW) the following order is made: The decision of the Blue Mountains City Council dated 29 July 2020 is set aside and Mr Jeray's amended application is remitted to the Blue Mountains City Council for reconsideration with the following direction: The amended application is deemed to have been received by the Blue Mountains City Council on the date of these reasons. Catchwords: STATUTORY CONSTRUCTION - meaning of requirement to identify information sought in s 41(1)(e) of the Government Information (Public Access) Act 2009 (NSW) Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Government Information Public Access) Act 2009 (NSW) Cases Cited: Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 126 Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 16 Texts Cited: None cited Category: Principal judgment Parties: Ivan Jeray (Appellant) Blue Mountains City Council (Respondent) Representation: Counsel: Appellant (Self Represented) M Bennett (Respondent) Solicitors: Marsdens Law Group (Respondent) File Number(s): 2021/00104031 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Citation: [2021] NSWCATAD 67 Date of Decision: 17 March 2021 Before: R L Hamilton SC, Senior Member File Number(s): 2020/00300586 REASONS FOR DECISION Overview 1. Mr Jeray applied to the Blue Mountains City Council for: All records concerning the North Face 100/Ultra Trail event. If there are many records please provide me with an index of records held so that I may select the documents required. 1. The North Face 100/Ultra Trail event is 100km trail running event held annually in the Blue Mountains. 2. An application for access to government information is not valid unless it includes "such information as is reasonably necessary to enable the government information applied for to be identified": Government Information Public Access) Act 2009 (NSW) (GIPA Act), s 41(1)(e). We will call this provision the "identification requirement". 3. On 29 July 2020, The Blue Mountains City Council wrote to Mr Jeray telling him that the application was invalid because it did not comply with the identification requirement in s 41(1)(e) of the GIPA Act. The reason given was: You have not provided enough information for Council to identify the records you are seeking. You have not specified a time frame/date range and you have not provided any information about the type of records/documents you are seeking access to in relation to this event. 1. The letter went on to explain that the event had been in operation for over 12 years and that a preliminary search indicated that Council holds a large volume of information across a number of operational areas of Council. Because of the large volume of records Council told Mr Jeray that it was unable to provide an index of the information, but listed the following "general topics" relating to the request: "event application/management, traffic management and enforcement, development application/approval records, and other local planning and environmental/ecotourism licensing and approval matters". The letter went on to say: Records are also likely to include internal and external correspondence and consultation concerning Council, event organisers, other government and non-government agencies including law enforcement and emergency management, media, members of the general public and local residents. 1. Council invited Mr Jeray to amend the application by providing a time frame and a description of the specific information he is requesting. Mr Jeray amended the application by substituting the words "a list" for "an index" in the application. 2. Mr Jeray requested an external review of the Council's decision by the Information and Privacy Commissioner. On 11 September 2020, the Commissioner decided that the Council had complied with the requirement in s 52(1)(a) of the GIPA Act to identify "the reason why the application is not a valid access application". Mr Jeray then applied to the Tribunal for an administrative review of the Council's decision that his application is invalid. Tribunal's orders 1. The Tribunal affirmed the agency's decision on the "original application" for the information and for an index if there were "many documents". The Tribunal then decided at [35] that the "practical solution in this case would seem to be that the matter is remitted to the agency to give consideration as to whether the information in the list prepared by the council officer of documents with the event name in the title can be released under s 75 GIPA Act". 2. On 14 April 2021, after the Tribunal had given its reasons for decision, the Council wrote to Mr Jeray advising that no new record or list of information was prepared y Council in response to the access application. 3. The Tribunal made the following orders: 1. The decision of the agency on the original application is affirmed. 2. The matter is remitted to the respondent to consider and decide withing 28 days of publication of these reasons whether to provide the applicant with the list of information prepared by it in response to the original application. Meaning of the identification requirement in s 41(1)(e) – grounds 3, 11 1. In ground 3 of the Notice of Appeal, Mr Jeray submits that, for various reasons, the Tribunal has misinterpreted the identification requirement. This ground of appeal is on a question of law because it is about the proper construction of a statutory provision. Mr Jeray has the right to appeal against an "internally appellable decision" on a question of law: Civil and Administrative Tribunal Act 2013 (NSW), s 80(2)(b). 2. The identification requirement is one of several validity requirements in s 41 of the GIPA Act: 41 How to make an access application 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. 1. As to the purpose of the identification requirement, the Tribunal quoted the following passage from [43] of Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 126 (Zonnevylle): We have concluded from the overall context that the purpose of s 41(1)(e) is to provide certainty as to when the "legally enforceable right" to be provided with access to government information arises. That right arises when a person makes a valid access application: ss 4, 9 and 41. The requirement to identify the government information ensures that an agency has sufficient information to enable it to identify, consider and make a decision about the government information applied for. 1. The Tribunal noted at [15] that many of the provisions in the GIPA Act, including the identification requirement, contain a test of reasonableness. An application will not be valid unless it includes "such information as is reasonably necessary to enable the government information applied for to be identified". (Emphasis added.) The Tribunal reached the following conclusion at [31]: I therefore find having regard to the evidence that the application originally lodged by the applicant for "all records" relating to the event does not contain a reasonable amount of information to enable the agency to perform its functions under the GIPA Act. There is a vast amount of information which is potentially caught by the application, and the agency needs to be able to meet its obligations to the applicant to exercise his legal right to information. The original is too generally expressed to enable the agency to perform its functions and therefore I find that it was justified in treating the application as invalid. (Emphasis added.) 1. Council submitted on appeal that Mr Jeray is seeking a vast amount of material which is stored in multiple locations and, even using search terms, it would be difficult to find them all. These submissions do not address the issue. The issue is whether the application is valid, not whether any search for information would, for example, "require an unreasonable and substantial diversion of the agency's resources": GIPA Act, s 53(5). 2. We appreciate that in Zonnevylle, the Appeal Panel identified the purpose of the identification requirement as being to ensure that "an agency has sufficient information to enable it to identify, consider and make a decision about the government information applied for". While the purpose of the identification requirement is to enable the agency to perform its functions under the GIPA Act, that should not be confused with the meaning of the identification requirement. Section 41(1)(e) merely requires that an applicant provide such information as is reasonably necessary to enable the government information applied for to be identified. 3. Contrary to the suggestion in the reasons Council gave for its decision, the identification requirement does mean that an applicant has to confine an application to a particular time frame or to particular types of records or documents. The fact that the requested information is vast or that the information is difficult to locate, does not make the application invalid. 4. At [14], the Tribunal quoted another passage from Zonnevylle. At [42] of that case, the Appeal Panel held that "the ordinary and grammatical meaning of the text of s 41(1)(e) is that, to be valid, an application for government information must include such information as is reasonably necessary to enable all the government information applied for to be identified". That conclusion was drawn in relation to an application which had severable parts. Some parts of the application contained enough information to enable the government information applied for to be identified but others did not. The Appeal Panel decided that the identification requirement applies to all the government information applied for. That means that an application for government information is either wholly valid or wholly invalid. There were no severable parts of Mr Jeray's application, so the Appeal Panel's reasoning on that point in Zonnevylle is not relevant to this case. 5. For the reasons we have given, the Tribunal erred in the way it construed the identification requirement. Rather than focusing on the wording of the provision, the Tribunal focused on the reasonableness of the application and the ability of Council to perform its functions. It follows that the Tribunal's decision to affirm the agency's decision should be set aside. So too, should the order requesting Council to consider whether to provide the applicant with any "list" of information. 6. In our view, when the identification requirement is construed correctly, it is apparent that Mr Jeray's application does include "such information as is reasonably necessary to enable the government information applied for to be identified". He has identified the information he is applying for – "all records concerning the North Face 100/Ultra Trail event". Council's evidence and submissions relate to the broad scope of the application, the time it will take to identify the information and the risk that some information will be missed. None of those issues are relevant to the question of validity. 7. The application, as amended, should be remitted to the Council to determine in accordance with these reasons. The application will be deemed to have been received by Council on the date of these reasons. 8. We deal below with the remaining grounds of appeal, none of which are upheld. Failure to invite the Information and Privacy Commissioner to make submissions 1. Ground 9 of Mr Jeray's grounds of appeal was that the Tribunal unfairly failed to invite the Information and Privacy Commissioner to make submissions before giving the reasons for decision. Under s 104 of the Tribunal Act, the Information Commissioner has a right to "appear and be heard" in these kinds of proceedings. The Tribunal is not obliged to invite the Information Commissioner to appear even if a party requests that that invitation be made. There was no error in the Tribunal failing to do so. 2. Related to this ground of appeal is ground 10 which concerns the following observation by the Tribunal at [36]: The applicant made a late additional application seeking a declaration from the Tribunal that the Information and Privacy Commissioner (IPC) in its decision had erred by failing to provide sufficient reasons for its decision upholding the original decision of the agency. The IPC was not invited to join or intervene. The issue was not the subject of submissions from the IPC. However I find that on the face of it there is no error in the approach and the reasons given by the IPC. 1. The short answer to this ground of appeal is that an internal appeal must be against an "internally appellable decision": Tribunal Act, s 80. An applicant cannot appeal from an observation of the Tribunal that is not necessary to support the orders made. The making of Order 2 gives rise to a reasonable apprehension of bias 1. In ground 14, Mr Jeray submits that by giving Council 28 days to decide whether to provide him with the list of information prepared in response to the original decision, the Tribunal has deprived him of the opportunity to appeal within time. Mr Jeray submits that the Tribunal should have given Council 14 days to comply. That would have given him time to appeal within the 28 day time limit. 2. The general principle is that a member of the Tribunal should not hear a case if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that he or she might not bring an impartial and unprejudiced mind to the resolution of the questions involved in it: Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 16 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ. This principle does not apply in this case where the wording of an order is said to reflect bias. 3. Ground 15 is that the Council failed to contact Mr Jeray within 28 days of the publication of the reasons for decision. As with ground 10, this ground of appeal is not against an "internally appellable decision": Tribunal Act, s 80. Orders 1. Orders 1 and 2 made by the Tribunal on 17 March 2021 are set aside. 2. In substitution for those orders, pursuant to s 63(3)(d) of the Administrative Decisions Review Act 2013 (NSW) the following order is made: The decision of the Blue Mountains City Council dated 29 July 2020 is set aside and Mr Jeray's amended application is remitted to the Blue Mountains City Council for reconsideration with the following direction: The amended application is deemed to have been received by the Blue Mountains City Council on the date of these reasons. ********** 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: 08 October 2021