Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Irvine v Temora Shire Council [2022] NSWCATAD 38 Hearing dates: 17 December 2021 Date of orders: 2 February 2022 Decision date: 02 February 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: H Dixon SC, Senior Member Decision: The application dated 20 September 2021 for access to information be dismissed. Catchwords: ADMINISTRATIVE LAW – refusal to provide access to information in response to access application – access then provided Legislation Cited: Government Information (Public Access) Act 2009 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Administrative Decisions Review Act 1997 (NSW) Category: Principal judgment Parties: Anthony Irvine (Applicant) Temora Shire Council (Respondent) Representation: Applicant (self-represented) E Smith (Director of Administration and Finance Temora Shire Council) (Respondent) File Number(s): 2021/00273218 Publication restriction: Nil Reasons for decision 1. By application dated 20 September 2021 the Applicant sought a review of a decision of the Respondent (the Council) made on 11 March 2021 under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) to deny access to certain information sought by the Applicant. 2. After its initial decision to refuse to provide access to the information sought by the Applicant in his access application of that date, and following a review by the Information and Privacy Commissioner NSW in a report dated 21 July 2021, and a case management conference in the Tribunal, the Council carried out a new review and in a decision dated 11 November 2021 concluded that the overriding public interest was in favour of disclosure of the information requested by the Applicant. The Applicant was then provided with the information sought. 3. In those circumstances, and for the reasons that follow, the application must be dismissed. Reviewable Decisions 1. The Tribunal's administrative review jurisdiction to review decisions of an agency made under the GIPA Act derives from s 100, read with ss. 28 and 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) and ss 7 and 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). 2. In respect of the reviewable decisions under the GIPA Act, Part 5 provides for a number of potential reviews of decisions of an agency in respect of an access application. Relevantly, s 80 sets out what are "reviewable decisions" for the purposes of the Part and includes in subsection 80(d) a decision to provide access or to refuse to provide access to information in response to an access application. 3. The Tribunal's jurisdiction is not at large and, in respect of the current application, the Tribunal is confined to dealing with decisions that come within the scope of s 80, in particular, a decision to refuse to provide access to information sought in an access application. Background 1. The access application by the Applicant made on 20 September 2021 is concerned with a single document, namely an email of the 4th October 2018. On 11 March 2021, and in response to the access application made by the Applicant, the Council provided access to the information he sought, namely the document, except where the Council regarded there was an overriding public interest against disclosure. Accordingly, the Council redacted certain portions of the document on the basis that it was personal information as defined in the GIPA Act and should not be disclosed to the Applicant. 2. Central to the Council's decision against disclosure was its consideration of a matter set out in clause 3(a) of the Table as provided in s 14(2) of the GIPA Act. 3. Clause 3(a) states: There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal an individual's personal information. 1. The Applicant was dissatisfied with the Council's response and on 20 April 2021 applied for an external review which was carried out by the Information and Privacy Commissioner and provided on 22 July 2021. 2. The review report concluded that on the information available the reviewer was not satisfied that the Council's decision was justified as the Council had not demonstrated that its reliance on clause 3(a) was justified and had not adequately taken account of all relevant public interest consideration in favour of disclosure. A new decision was thus required of the Council. 3. Following the review by the Information and Privacy Commissioner there followed a number of communications between the Applicant and the Council in which the Applicant complained about the Council's delay in reconsidering its refusal. One reason for the delay appears to be that the Council had approached another Local Council to conduct the new proposed internal review. 4. As the Applicant's request remained outstanding he brought the present application in the Tribunal on 20 September 2021. 5. The ground upon which the Applicant relies in his application of 20 September 2021 is the review report from the Information and Privacy Commissioner of 22 July 2021 referred to above. 6. Following a case management conference in the Tribunal the Council approached the persons whose personal information was contained within the document requested by the Applicant, namely, the email of 4 October 2018, which formed the basis of the earlier refusal to provide access to that part of the document. Those persons informed the Council that they had no objection to the personal information contained in the document being disclosed. Council's New Decision 1. The Council's representative, the Director of Administration & Finance, then in considering afresh the application by the Applicant for access, and in light of the matters referred to in paragraph 15 above, and having weighed the public interest considerations against disclosure and public interest considerations in favour of disclosure, decided in a written decision dated 11 November 2021 that there was an overriding public interest in favour of disclosure of the information requested. A copy of the decision together with the document sought by the Applicant in un-redacted form was then provided to him under cover of a letter dated 11 November 2021. 2. These events thus overtook the original refusal on the part of the Council to provide access to all the information the subject of the Applicant's access application dated 20 September 2021. 3. In his submissions to the Tribunal on the hearing of his application the Applicant confirmed that the information that he sought from the Council had now been provided to him in response to his application. 4. Accordingly, there is now no refusal to provide access to the information sought by the Applicant and no reviewable decision for the purposes of Part 5 of the GIPA Act remains alive. Other Issues 1. The Applicant, however, raised a number of other concerns about the Council's handling of his request for access to information which broadly stated was as follows: the lengthy delays in the Council providing him with access to the information; an alleged failure on the part of the Council to comply with s 16 of the GIPA Act which provides that an agency must provide advice and assistance to a person who requests access to information; his concerns that the Council had not acted properly; and the frustration he felt as a result of the entire process which should not have taken the lengthy period for him to obtain access to one document. 2. The Applicant also raised particular concerns about notations by the Council in a document, "NCAT – GIPA Review" completed by the Director of Administration & Finance of the Council and dated 10 October 2021 and provided to the Tribunal under cover of an email of 19 October 2021. Under a heading requesting the provision of further details about the factors relied upon by the Council in its initial refusal to provide access to the information a reference was made to clause 3(a) of the Table in s 14 of the GIPA Act and also to clause 3(f) of the Table which provides as a consideration against disclosure exposure of a person to a risk of harm or serious harassment or serious intimidation. 3. The Council informed the Tribunal in the hearing that it did not in fact rely on clause 3(f). There was no evidence or material provided to the Tribunal, or to the Applicant at any stage, relating to, or which could support as a matter for consideration against disclosure the matters set out in clause 3(f) in the Table to s 14 of the GIPA Act. 4. The Applicant's concerns in respect of clause 3(f) of the Table thus appear now to be answered by the Council. Further, in circumstances where there is no longer a refusal for access to the information sought the Applicant's concern in respect of clause 3(f) is beyond the scope of his application dated 20 September 2021. 5. Similarly, the question of any delay is beyond the scope of the Applicant's application of 20 September 2021. 6. Any complaints about compliance, or non-compliance, with s 16 of the GIPA Act, is also outside of the scope of any review to be conducted by the Tribunal under the Applicant's application of 20 September 2021. Conclusion 1. For the reasons stated above the application for review of the Council's decision of 11 March 2021 to refuse access to information is dismissed. ********** 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: 02 February 2022