Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Robertson v Deputy Secretary, Local Government, Planning and Policy [2022] NSWCATAD 147 Hearing dates: 9 and 28 June 2021 Date of orders: 09 May 2022 Decision date: 09 May 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: D Dinnen, Senior Member Decision: The Respondent's decision of 8 March 2021 is affirmed Catchwords: ADMINISTRATIVE LAW – administrative review – Government Information – invalid application – excluded information – "relates to" – Office of Local Government - complaint handling and investigative functions Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Information Commissioner) Act 2009 Government Information (Public Access) Act 2009 Industrial Relations Act 1996 Local Government Act 1993 Cases Cited: AFW v Workcover Authority of New South Wales [2012] NSWADT 136 ALZ v SafeWork NSW (No 2) [2016] NSWCATAD 121 Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185 Beregi v Department of Planning, Industry and Environment [2019] NSWCATAD 253 Bevege v Commissioner of Police, NSW Police Force [2014] NSWCATAD 22 Black v Hunter New England Local Health District [2011] NSWADT 295 Broadribb v Medical Council of New South Wales [2018] NSWCATAD 213 BY v Director General, Attorney-General's Department [2002] NSWADT 79 Clark v NSW Trustee and Guardian [2019] NSWCATAD 73 Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111 Coppock v Willoughby City Council [2021] NSWCATAD 166 DF v Director General, Attorney General's Department [2002] NSWADT 164 DNM v Ombudsman [2019] NSWCATAP 77 Fearnley v Health Care Complaints Commission [2020] NSWCATAD 30 Joye v Beach Petroleum NL [1996] FCA 1552; (1996) 67 FCR 275 Ku-Ring-Gai Council v NSW Department of Premier and Cabinet [2016] NSWCATAD 181 Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 Miller v Director of Public Prosecutions [2012] NSWADT 38 Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited [2020] NSWCATAP 182 Rittau v Commissioner of Police, NSW Police Service [2000] NSWADT 186 The Owners – Strata Plan No 80412 v Vickery (Costs) [2020] NSWCATAP 48 Tooheys Ltd v Cmr of Stamp Duties (NSW) [1961] HCA 35; (1961) 105 CLR 602 Watson v NSW Trustee and Guardian [2015] NSWCATAD 139 Waugh Hotel Management Pty Ltd v Marrickville Council [2009] NSWCA 390 Yee v Medical Council of NSW [2017] NSWCATAD 370 Category: Principal judgment Parties: Ian Robertson (Applicant) Deputy Secretary, Local Government, Planning and Policy (Respondent) Information Commissioner (Intervenor) Representation: Counsel: I Latham (Applicant) M Cobb-Clark (Respondent) Solicitors: Office of Local Government, Department of Planning, Industry and Environment (Respondent) Information Commissioner (Intervenor) File Number(s): 2021/0074395 Publication restriction: none REASONS FOR DECISION 1. Ian Robertson (the Applicant) is the Secretary of the Development and Environmental Professionals' Association (depa), which is an association of employees registered under the Industrial Relations Act 1996. On 5 March 2021 he made an application for access to information under the Government Information (Public Access) Act 2009 (GIPA Act) to the Office of Local Government for the following (the access application): (i) A copy of any departmental report prepared under section 440H of the Local Government Act 1993 (NSW) referring to Councillor Paul Funnel of Wagga Wagga City Council; (ii) A copy of any briefing notes, recommendations or instructions relied upon by Tim Hurst Deputy Secretary, Local Government, Planning and Policy Department of Planning Industry Environment when determining whether to make any direction to Councillor Paul Funnell of Wagga Wagga City Council; (iii) A copy of any other documents relied upon by Tim Hurst Deputy Secretary, Local Government, Planning and Policy Department of Planning, Industry and Environment indicating any prior offending or post event conduct and previous incidents of misconduct on the part of Clr Funnell. 1. On 8 March 2021 the Office of Local Government decided pursuant to s 51(1)(b) of the GIPA Act that the access application was not valid, because the information sought was 'excluded information' within the meaning of s 43 of the GIPA Act. This was a reviewable decision pursuant to s 80(a) of the GIPA Act (the reviewable decision). By application dated 16 March 2021 the Applicant sought administrative review in this Tribunal of the reviewable decision. 2. The Deputy Secretary, Local Government Planning and Policy (the Respondent) is the correct Respondent in relation to the review proceedings in this Tribunal: see [13] below. At hearing, the Information Commissioner also appeared and made submissions, pursuant to s 104(1) of the GIPA Act. Legal Principles GIPA Act 1. Section 3 of the GIPA Act provides the purpose and objects of the GIPA Act: (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by-- (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament-- (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. 1. A person who applies for access to government information has a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information: GIPA Act s 9(1). 2. On receipt of an access application, an agency first needs to make a decision as to whether the access application is valid: s 51 of the GIPA Act: 51 INITIAL DECISION AS TO VALIDITY OF APPLICATION (1) When an agency receives an application for access to government information that it appears is intended to be an access application, the agency is to decide whether the application is a valid access application and is to notify its decision to the applicant by either-- (a) acknowledging receipt of the application as a valid access application, or (b) notifying the applicant that the application is not a valid access application. Note: An application is not a valid access application if it is an application for excluded information of the agency or does not comply with the formal requirements for access applications. (2) An agency's decision as to the validity of an application must be made and notified to the applicant as soon as practicable after the agency receives the application and in any event within 5 working days after the application is received. Note: The decision as to the validity of an application is reviewable under Part 5. (3) An acknowledgement of receipt of a valid access application must include the following-- (a) the date by which the application is required to be decided (subject to any suspension or extension of the time for deciding an application), (b) a statement that the application will be deemed to have been refused if not decided by the required date, (c) the following statements about the inclusion of information in the agency's disclosure log (unless the agency considers it unlikely that information about the application will be included in the disclosure log)-- (i) a statement that information concerning the application is likely to be included in the agency's disclosure log and that the applicant can object to this, (ii) a statement about the right of review under Part 5 of a decision by the agency to include information in its disclosure log despite the applicant's objection, (d) such details of rights of review in connection with access applications as the Information Commissioner may from time to time direct. (4) Acknowledging receipt of an application as a valid access application does not prevent the agency from subsequently deciding that the application is not a valid access application. (5) An agency's decision that an application is not a valid access application is presumed to be correct, subject to any review of the decision under Part 5. 1. The GIPA Act prescribes categories of information that are excepted from the general presumption of public access that is required to commence application of the public interest test set out at section 13 of the GIPA Act. Section 43 of the GIPA Act states that: (1) An access application cannot be made to an agency for access to excluded information of the agency. Note: Information is excluded information of an agency if it relates to any function specified in Schedule 2 in relation to the agency. (2) An application for government information is not a valid access application to the extent that the application is made in contravention of this section. 1. Item 6 of Schedule 1 to the GIPA Act provides: SCHEDULE 1 – INFORMATION FOR WHICH THERE IS CONCLUSIVE PRESUMPTION OF OVERRIDING PUBLIC INTEREST AGAINST DISCLOSURE 6 EXCLUDED INFORMATION (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of. … (3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5. 1. 'Excluded information' is defined in Schedule 2 to the GIPA Act, with emphasis added to highlight the Respondent: SCHEDULE 2 – EXCLUDED INFORMATION OF PARTICULAR AGENCIES Note: Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is "excluded information" of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency. … 2 COMPLAINTS HANDLING AND INVESTIGATIVE INFORMATION The office of Auditor-General--investigative, audit and reporting functions. The Independent Commission Against Corruption--corruption prevention, complaint handling, investigative and reporting functions. The office of Inspector of the Independent Commission Against Corruption--operational auditing, complaint handling, investigative and reporting functions. The Judicial Commission of New South Wales (including the Conduct Division)--complaint handling, investigative and reporting functions. The office of Ombudsman--complaint handling, investigative and reporting functions (including any functions of the Ombudsman under the Community Services (Complaints, Reviews and Monitoring) Act 1993 ). The office of Information Commissioner--review, complaint handling, investigative and reporting functions. The office of Legal Services Commissioner--complaint handling, investigative, review and reporting functions. The Health Care Complaints Commission--complaint handling, investigative, complaints resolution and reporting functions (including any functions exercised by the Health Conciliation Registry and any function concerning the provision of information to a registration authority or a professional council (within the meaning of the Health Care Complaints Act 1993 ) relating to a particular complaint). The Child Death Review Team--all functions. The Law Enforcement Conduct Commission--corruption prevention, handling of misconduct matters (within the meaning of the Law Enforcement Conduct Commission Act 2016 ), investigative and reporting functions. The office of Inspector of the Law Enforcement Conduct Commission--operational auditing, handling of misconduct matters (within the meaning of the Law Enforcement Conduct Commission Act 2016 ), investigative and reporting functions. The office of Privacy Commissioner--review, complaint handling, investigative and reporting functions. The New South Wales Crime Commission--investigative and reporting functions. The President of the Anti-Discrimination Board--complaint handling, investigative and reporting functions in relation to a complaint that is in the course of being dealt with by the President. The Office of Local Government (including the Chief Executive and other Departmental representatives)--complaint handling and investigative functions conferred by or under any Act on that Department. The Domestic Violence Death Review Team--all functions. The office of the Inspector of Custodial Services--operational auditing, review, inspection, investigative and reporting functions. The office of Small Business Commissioner--complaint handling, dispute resolution, investigative and reporting functions. The office of the Public Service Commissioner--inquiry functions of the Commissioner under section 83 of the Government Sector Employment Act 2013 (or under section 82 of that Act if the Commissioner is directed to conduct a special inquiry). The office of Ageing and Disability Commissioner--report handling, investigative and reporting functions (including any functions of the Commissioner relating to Official Community Visitors appointed under the Ageing and Disability Commissioner Act 2019). The Office of the Children's Guardian--reportable conduct matters under Part 4 of the Children's Guardian Act 2019 (including report handling, investigative and reporting functions, and any functions of the Children's Guardian relating to Official Community Visitors appointed under the Children's Guardian Act 2019). 1. Schedule 4 of the GIPA Act contains the following definition of 'excluded information': "excluded information" of an agency specified in Schedule 2 means information that relates to any function specified in that Schedule in relation to the agency. 1. In DNM v Ombudsman [2019] NSWCATAP 77 (at [51]), the Appeal Panel explained: "…statutory purpose of the definition of excluded information is to restrict or prohibit access to government information when there is an overriding public interest against disclosure, such as the public interest in delivering responsible and effective government." 1. The consequence of information being subject to a conclusive presumption against disclosure is that an agency is not required to balance the public interest test before refusing access to it, and the Tribunal is precluded from considering the public interest test in relation to that information: Beregi v Department of Planning, Industry and Environment [2019] NSWCATAD 253 (Beregi) at [21]; Yee v Medical Council of NSW [2017] NSWCATAD 370 at [41]. 2. If the conclusive presumption applies to information, then no other provisions of the GIPA Act facilitate disclosure of that information: Broadribb v Medical Council of New South Wales [2018] NSWCATAD 213 (Broadribb) at [62]. 3. The GIPA Act at Sch 2 refers to the "Office of Local Government", not the Respondent. That agency no longer exists, as its functions have been transferred to the Respondent. Clause 1A(1)(b) of Sch 3 to the GIPA Act provides that the conclusive presumption of an overriding public interest in Sch 1 of the GIPA Act continues to have effect despite the abolition of the Office as an agency. Clause 1B(1)(b) of Sch 3 of the GIPA Act provides that information that relates to a function specified in Sch 2 of the GIPA Act continues to be 'excluded information' for the purposes of that Act. 4. If an agency determines that an access application is invalid, pursuant to s 52 it must provide the applicant with certain assistance: 52 AGENCY ASSISTANCE WITH INVALID APPLICATIONS (1) The notification of an agency's decision that an application is not a valid access application must-- (a) include a statement of the reason why the application is not a valid access application (including reference to the relevant provisions of this Act), and (b) if a reason is non-payment of the required application fee, invite the applicant to pay the fee, and (c) if a reason is failure to provide required information, invite the applicant to provide the information, and (d) notify the applicant of the right of review under Part 5 that applies in relation to a decision that an application is not a valid access application. … (5) An applicant is entitled to a refund of any application fee that accompanied an invalid access application (unless the application subsequently becomes valid). Local Government Act 1993 1. Section 429A of the Local Government Act 1993 (the LGA) deals with the handling of complaints. It states relevantly that: 429A Complaints about councils, councillors, delegates and staff (1) A public official within the meaning of the Public Interest Disclosures Act 1994 may complain to the Departmental Chief Executive about the conduct of any one or more of the following--… (c) a councillor,… (3) The Departmental Chief Executive may deal with a complaint made under this section-- (a) by means of an investigation under this Division, or (b) in such other manner as the Departmental Chief Executive considers appropriate. 1. Sections 440H of the LGA states relevantly: 440H DEPARTMENTAL CHIEF EXECUTIVE MAY INVESTIGATE OR SEEK REPORT ON MISCONDUCT OF COUNCILLOR (1) The Departmental Chief Executive may conduct an investigation for the purpose of determining whether a councillor has engaged in misconduct. (2) The Departmental Chief Executive may conduct such an investigation-- (a) on his or her own initiative, or (b) if the general manager of a council refers an allegation of misconduct by a councillor to the Departmental Chief Executive, or (c) if a council, by resolution, refers an allegation of misconduct by a councillor to the Departmental Chief Executive, or … (4) The Departmental Chief Executive may take copies of or extracts from any document to which the Departmental Chief Executive gains access under this section. (5) The Departmental Chief Executive may arrange for a departmental report to be prepared in relation to an investigation conducted under this section. (5A) The Departmental Chief Executive may arrange for a departmental report to be prepared about whether a councillor has engaged in misconduct without an investigation being carried out under this section if-- (a) the matter has been referred to the Departmental Chief Executive by the council and the Departmental Chief Executive is of the opinion that the report may be based on the findings of an investigation conducted by or on behalf of the council, or (b) the Departmental Chief Executive is of the opinion that the alleged misconduct, if proven, would be minor in nature and, were it to warrant disciplinary action, the disciplinary action would be comprised only of counselling or reprimanding the councillor, or (c) the Departmental Chief Executive otherwise considers it appropriate to do so. (6) The preparation of a departmental report is a prerequisite to a decision by the Departmental Chief Executive to take disciplinary action against a councillor, unless the disciplinary action is taken on the basis of a report by the Ombudsman or Independent Commission Against Corruption. … 1. Section 440I of the LGA states that: 440I Departmental Chief Executive may take disciplinary action for misconduct (1) The Departmental Chief Executive may take disciplinary action against a councillor if the Departmental Chief Executive is satisfied that-- (a) the councillor has engaged in misconduct (whether on the basis of a departmental report or a report by the Ombudsman or Independent Commission Against Corruption), and (b) disciplinary action is warranted. The Information Commissioner 1. The Information Commissioner is an independent statutory officer with functions under GIPA Act and the Government Information (Information Commissioner) Act 2009 (NSW) (GIIC Act). In proceedings before this Tribunal, the Information Commissioner has a right to appear and be heard pursuant to s104(1) of the GIPA Act and cl 9(4)(a) of Sch 3 to the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act). 2. The Information Commissioner's role is to assist the Tribunal in determining the correct and preferable decision pursuant to s 63 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). This can include making submissions on issues of construction, the applicable law, and applicable policies and guidelines: Black v Hunter New England Local Health District [2011] NSWADT 295 at [53]; and can extend to arguing the merits of applications: Rice Marketing Board for the State of New South Wales v Forbidden Foods Pty Limited [2020] NSWCATAP 182 at [120]. Issues 1. The issues for determination by the Tribunal in these proceedings are: 1. whether the Applicant's access application is invalid pursuant to section 43 of the GIPA Act, in part or in full, because it was an application made for excluded information; 2. whether the Respondent has demonstrated the decision-making requirements under Schedule 2 to the GIPA Act. Evidence 1. The Applicant provided a Statement dated 26 May 2021. The Statement includes his role as Secretary for depa, depa's role in unrelated council disputes between 2002 and 2020, and his explanation for seeking the information subject of the access application. The Applicant's concerns, as expressed by him, can be summarised as wanting to ascertain whether past complaints against Councillor Funnell had been taken into account by the Respondent in determining the penalty to be imposed on him: … so that he may know whether the Deputy Secretary properly performed his functions under the Act. The Deputy Secretary is refusing to produce that evidence on the basis that it is excluded material. The applicant is concerned that the excluded material process is being used to hide error in the decision-making process. 1. The Respondent relied on a Statement of Lynette Brown dated 4 May 2021. Ms Brown is the Manager of the Investigations Team within the Sector Performance and Intervention Group of the Office of Local Government. She explains the processes by which the Office of Local Government, a unit within the Department of Planning, Industry and Environment, receives, investigates and reports on complaints pursuant to the LGA. 2. On or about 20 August 2019, Wagga City Council (Council) referred certain complaints regarding Councillor Paul Funnell to the Respondent to be handled pursuant to the LGA and the Procedures for the Administration of the Model Code of Conduct (the Procedures). The Respondent authorised the preparation of a departmental report in relation to Councillor Funnell on around 1 November 2019. After considering the report, on 5 February 2021 the Respondent issued an order with reasons pursuant to s 440I of the LGA. Whilst the report was not provided to the Tribunal, the order and reasons were attached to Ms Brown's statement. 3. Councillor Funnell was ordered to cease engaging in the misconduct pursuant to s 440I(2)(c) of the LGA, apologise to Council staff and councillors for inappropriate behaviour towards them on 19 November 2018 pursuant to s 440I(2)(d) and was suspended from civic office for a period of one month pursuant to s 440I(2)(g). The reasons for those orders make clear that the misconduct related to an incident which occurred on 19 November 2018 and the Respondent stated that the disciplinary action imposed related to a single episode of conduct: I have considered and taken into account that this conduct occurred in a single episode, and the absence of any prior offending or post event conduct in the past two years and the lack of previous incidents of misconduct on the part of Clr Funnell. 1. At [26] to [27] of her Statement, Ms Brown states: In handling the complaints concerning Clr Funnell referred by Council to the Respondent, a number of people working within the Office have generated documents containing information that could respond to the categories of government information sought in the GIPA application. The respondent does not consent to the release of any government information contained within these documents. 1. Ms Brown was cross-examined at hearing. Her oral evidence was consistent with her written statement, and the Tribunal accepts her evidence. The Applicant was not required for cross examination. Consideration 1. In issue is whether the information sought falls into the definition of 'excluded information' under the GIPA Act. The Respondent contends that the report and any records of its consideration in making the decision to impose the disciplinary action on Councillor Funnell 'relate to' the complaint handling and investigation process. The Applicant contends while the investigation process itself is excluded information, the resulting reports and decision-making processes are not excluded information. 2. The Tribunal has previously considered the breadth of excluded information in Sch 2 of the GIPA Act for the Office of Local Government. In Beregi the Tribunal considered access applications seeking documents relating to the North Sydney Council Public Inquiry. The Tribunal found that, in considering the excluded information for the Office of Local Government as "complaint handling and investigative functions conferred by or under any Act", a "significant breadth of information is capable of falling within the scope of these functions": at [23]. Further, the complaint handling and investigative functions of the Office of Local Government under s 430 of the LGA encompassed matters from the receipt of a complaint up to and including its resolution: at [27], and the information falling within the scope of these functions includes, among other things, submissions, recommendations and emails concerning steps to be taken to deal with complaints made: at [28] – [29]. 23 The GIPA Act does not define the terms "investigative function" or "complaint handling function". There has been little consideration of the construction of these terms and they should be given their natural meanings. Drawing on cases in other related fields, however, a significant breadth of information is capable of falling within the definition of "investigative and complaint handling functions" (Broadribb v Medical Council of New South Wales [2018] NSWCATAD 213 at [45] – [62]; DF v Director General, Attorney General's Department [2002] NSWADT 164 at [25]; Miller v Director of Public Prosecutions [2012] NSWADT 38 at [19] – [32]). ... 27 I am of the view, contrary to the submissions of Ms Beregi, that the complaint handling and investigative functions of the respondent encompass matters from the receipt of a complaint up to and including its resolution. These functions will include the broad complaint handling powers in section 430 of the Local Government Act and extend to the more serious functions concerning the suspension of a council, the making of a Performance Improvement Order and to the very serious undertaking of the conduct of a public inquiry into allegations against a council or councillors. 28 The information in question concerns matters such as details of the complaints; information provided to Mr Howard about complaints which had been dealt with by OLG; submissions and file notes prepared by OLG staff containing their observations of Council meetings prepared as part of the process of ascertaining whether various complaints should be investigated; notes of confidential conversations between OLG staff and persons from or related to Council; documents which were generated as part of the OLG investigation of the complaints; responses to requests from Mr Howard for information relating to matters the subject of the public inquiry; and submissions, recommendations and emails concerning steps to be taken to deal with the complaints made about the Council and assessments of steps already taken in relation to those issues. 29 I am therefore satisfied that the information relates to the complaint handling and investigative functions conferred by or under the Local Government Act on OLG and, as such, is therefore prima facie excluded information. 1. This was upheld on appeal in Beregi v Department of Planning Industry and Environment [2020] NSWCATAP 185 (Beregi Appeal) at [47]-[48], [71]-[78] and [100]. In Coppock v Willoughby City Council [2021] NSWCATAD 166 at [69] to [71] the Tribunal followed the reasoning in Beregi and the Beregi Appeal and applied it to specific provisions of the LGA, including those relevant to these proceedings: 69 Thus, the expression "complaint handling and investigative functions" conferred by or under the LG Act on the OLG is capable of a wide operation and encompasses matters from the receipt of a complaint up to and including its resolution. 70 Of particular relevance to the present proceeding are the following provisions of the LG Act: (1) s 429A, which provides for complaints to be made by public officials about the conduct of councils and councillors among others and which provides for an investigation to occur under the Division; … (3) s 433, which provides for a report of an investigation under the Division to be provided to the Minister and the relevant Council; (4) s 434 which provides that a council must, within 28 days after presentation to it of a report made following an investigation under the Division, give written notice to the Minister of the things done or proposed to be done to give effect to any recommendations contained in the report; (5) s 440, which provides that regulations may prescribe a model code of conduct applicable to councillors and others and requires that councils adopt a code of conduct which incorporates the provisions of the model code of conduct; (6) s 440AA, which provides that regulations may prescribe a model procedure for administering the model code of conduct and requires that councils adopt a procedure which incorporates the provisions of the model procedure; (7) s 440H, which provides for an investigation for the purpose of determining whether a councillor has engaged in misconduct. Such an investigation may be started in a variety of ways, including by the OLG on its own initiative, of by the referral by a general manager of a council of an allegation of misconduct by a councillor; (8) s 440I, which provides that the OLG may take disciplinary action against a councillor upon satisfaction that the councillor has engaged in misconduct and disciplinary action is warranted; … 71 Also of relevance are: (1) the Code of Conduct; (2) the 2013 Procedures; and (3) the Procedures published in 2018 ("2018 Procedures"). 1. The Respondent submitted that the words 'relates to' in the definition of 'excluded information' should be given their widest import: Beregi at [21]; Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 at [59]; Broadribb at [65]; Watson v NSW Trustee and Guardian [2015] NSWCATAD 139 at [15]. The Applicant submitted that the words 'relates to' in Sch 2 should not be given 'the widest import' contended for by the Respondent, because then: …almost everything that the department does in consequence of a complaint would be covered by the definition. Details of a training course imposed as part of the disciplinary process would be so covered. Further, it would be covered by the definition without temporal limitation. The training course would be kept secret for ever. Long after the state of New South Wales crumbled into the sea, there would be a file containing details of attendees at a council training course. That file could never be opened to the public. 1. I disagree with the Applicant's conclusion. As discussed in the Beregi Appeal at [74] to [77] whilst the term 'relates to' has a broad meaning, here it is confined to the complaints handling and investigative functions conferred by the LGA. The LGA does not include, using the Applicant's example, training courses as part of the complaints handling or investigative functions of the Office of Local Government (or the Respondent as its successor). The LGA does, however, confer the preparation of a departmental report and the determination by the Respondent to impose disciplinary action on a councillor as part of the complaints handling and investigative functions of the Office of Local Government, according to Ms Brown's evidence and ss 440H and 440I of the LGA. 2. As submitted by the Respondent, because the preparation of a departmental report is a precursor to disciplinary action pursuant to either ss 440H(5) or 440H(5A) of the LGA, it would clearly 'relate to' the investigative functions of the Respondent, because such a report would be prepared 'in relation to an investigation' under s 440H of the LGA. Even where a report is prepared about a councillor without an investigation being carried out, pursuant to s 440H(5A)(c) of the LGA, that report would 'relate to' the complaint handling functions of the Respondent, because it would be the prerequisite to a decision to take disciplinary action against a councillor, which is a means by which a complaint of misconduct might be handled pursuant to s 440H(6) of the LGA. 3. The second category of documents sought by the access application – 'a copy of any other briefing notes, recommendations or instructions relied upon… when determining whether to make any direction to [Clr Funnell]' clearly forms part of the Respondent's investigative processes because it is relied upon by a decision-maker of the Respondent in the course of an investigation. Similarly, the third category of documents sought by the access application – 'a copy of any other documents relied upon… indicating any prior offending or post event conduct and previous incidents of misconduct' would also 'relate to' the investigative functions of the Respondent. 4. The Applicant submitted that to the extent that Beregi and the Beregi Appeal stood for the proposition that the excluded information includes the resolution of complaints and investigations, the Tribunal's conclusion was obiter, and that in any event, this Tribunal was not bound by the Beregi Appeal because it is not bound by precedent: Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 at [195], Ku-Ring-Gai Council v NSW Department of Premier and Cabinet [2016] NSWCATAD 181 at [15] – [17]. 5. The Applicant submitted that Beregi considered the context of whether all documents between the Office of Local Government and the Commissioner of the North Sydney Council Public Inquiry 'relate to' the Office of Local Government's complaints handling and investigative functions under s 430 of the LGA. The Tribunal therefore did not need to determine whether the complaint handling and investigative functions of the Respondent encompass matters from the receipt of a complaint up to and including its resolution, and so its findings at [27] were obiter. 6. The Respondent submitted that the findings at [23] to [27] of Beregi were the Tribunal's ratio for determining the issue expressed at [14], that: […] The primary reason for the respondent's decisions that the information in dispute should not be disclosed to Ms Beregi is that the information relates to the respondent's complaint handling and investigative functions and thus falls within the definition in the GIPA Act of "excluded information". 1. I agree with the Respondent that the Tribunal's findings in Beregi at [27] were not 'obiter'. The conclusion at [27] in Beregi was not a comment made in passing, it was a finding made as the result of the legal reasoning which preceded it, in answer to a central issue for the Tribunal's determination. In the Beregi Appeal, the Appeal Panel also considered this issue to be central, stating at [46] – [48]: 46 The central issue is whether the Tribunal erred in concluding that the information requested "relates to" the "complaint handling and investigative functions conferred by or under any Act" on the OLG (GIPA Act, Sch 4, definition of "excluded information" and Sch 2, cl 2). 47 The Tribunal adopted a broad view of the meaning of "complaint handling and investigative functions", concluding that that term encompassed matters from the receipt of a complaint up to and including its resolution. Whether the Tribunal was correct in adopting that broad view depends on the construction of the words used in the definition of "excluded information" and in cl 2 of Sch 2, in context. 48 There are 21 agencies identified in cl 2 of Sch 2 under the heading "Complaints handling and investigative information". The functions in respect of which information is excluded information are different for each of those agencies, and in addition to the terms "complaint handling" and "investigative", some include functions such as "reporting, "review", "inspection", "operational auditing", and "complaints resolution". As noted by the Appeal Panel in DNM v NSW Ombudsman [2019] NSWCATAP 77 at [47], those terms are generic descriptions of various agency functions, described in general terms. The Tribunal and its predecessor, the Administrative Decisions Tribunal, have, as identified in the decision at [23] in the context of other agencies and functions, adopted a broad reading of the terms used in cl 2. The ordinary meaning of the words "complaint handling and investigative functions" is apt to apply to a broad range of activities of an agency. 1. At [71] – [77] the Beregi Appeal considered the Tribunal's findings in Beregi at [27] and held that that the broad approach adopted by the Tribunal was supported by the evidence in that case, and that the inclusion of "relates to" as it is used in the definition of "excluded information" in Sch 2 of the GIPA Act has a broad meaning, and there was no error in the Tribunal's conclusion on this point: 71 The Tribunal concluded at [27] that the complaint handling and investigative functions of the OLG encompass "matters from the receipt of a complaint up to and including its resolution", from the broad complaint handling powers in s 430 of the LG Act through to more serious functions concerning suspension and a performance improvement order, to the very serious undertaking of a public inquiry. 72 The broad approach adopted by the Tribunal to the range of functions provided for in Chapter 13 of the LG Act as informing the "complaint handling and investigative functions" of the OLG is consistent with Ms Brown's evidence as to the OLG's role in performance management. In oral evidence Ms Brown explained that complaints give the OLG an indicator that something is not going right at the council, and the OLG then has an obligation to examine that information and to monitor and see how that council is going (T 191). Ms Brown's evidence was that the underlying information, being complaints, investigations and monitoring, was used to inform the Minister about whether the criteria for the issue of a performance management order were met (T 192). The OLG could manage complaints, but to get an effective outcome a range of mechanisms to try and assist the council to improve its performance was needed; by the time of the public inquiry nothing had been effective and the complaints could not have been dealt with even with the performance improvement order (T 193). The OLG had a dual role in the public inquiry, in providing a submission and giving evidence, and in providing documents to the Commissioner at his request (T 198). In cross examination Ms Brown described the OLG's role in the public inquiry as being a "supporting agency" (T 200); and further described the OLG as doing all the preliminary inquiries, investigations and intervention work, and using the information gained to inform the advice provided as to the most appropriate intervention by the DCE or the Minister (T 211). 73 Ms Beregi takes issue with the Tribunal's reference in [27] to the "undertaking of a public inquiry", which she submits is not a function conferred on the OLG. That is because, as Ms Beregi submits, the Governor or the Minister appoints a Commissioner to hold a public inquiry under s 438U of the LG Act. The question is whether this determines whether the information held by the OLG relating to the period leading up to the calling of the inquiry into the Council, through the conduct of the inquiry and the preparation of a report until that report was tabled in Parliament, is information that "relates to" the "complaint handling and investigative functions conferred by or under any Act on that Department". 74 The Tribunal relied on the authorities adopting a broad approach to the term "relates to", concluding at [21] that the question is the extent to which the information in issue has a connection with the specified function. The authorities referred to, in particular Miller v Director of Public Prosecutions [2012] NSWADT 38 and more recently Watson v NSW Trustee and Guardian [2015] NSWCATAD 139, support that approach. In Miller the Tribunal adopted a broad approach both to the functions, in that case being the "prosecuting functions" of the DPP, and the expression "relating to", applying the reasoning in the Federal Court decision in Colakovski v Australian Telecommunications Corporation [1991] FCA 152; (1991) 100 ALR 111, at [28] that the words "relating to" "are of the widest import". In Watson v NSW Trustee and Guardian [2015] NSWCATAD 139, concerning information relating to complaint handling by the NSW Trustee and Guardian, the Tribunal concluded at [15] based on those authorities, that the issue is the extent to which the information in issue has a connection with the specified agency. 75 The term "relates to" was considered by the New South Wales Court of Appeal in Waugh Hotel Management Pty Ltd v Marrickville Council [2009] NSWCA 390. Campbell JA reviewed the relevant authorities at [44] and following. His Honour referred (at [45]) to Taylor J's judgment in Tooheys Ltd v Cmr of Stamp Duties (NSW) [1961] HCA 35; (1961) 105 CLR 602 at 620, where his Honour said: the expression "relating to" is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. 76 His Honour also referred (at [46]) to the judgment of Beaumont and Lehane JJ in Joye v Beach Petroleum NL [1996] FCA 1552; (1996) 67 FCR 275 at 285, where their Honours referred to Taylor J's judgment in Tooheys then continued: Other decisions of the High Court have acknowledged that, ordinarily, "relates to" is a wide term, and that it will depend upon context whether it is necessary that the relationship be direct or substantial, or whether an indirect or less than substantial connection will suffice... 77 We consider that the term "relates to," as it is used in the definition of "excluded information" in Sch 4 to the GIPA Act, has a broad meaning. Notwithstanding Parliament's intention that the GIPA Act is to be interpreted so as to further the object of that Act (s 3(2)), that object is not to ensure the provision of access to all government information. It includes to "open government information to the public by ... providing that access to government information is restricted only when there is an overriding public interest against disclosure" (GIPA Act, s 3(1)(c)). The use of the term "relates to" indicates, in our view, that the legislature intended there to be an overriding public interest against disclosure of government information having a broad connection to the OLG's complaint handling and investigative functions, where those functions were conferred by or under any Act on the OLG (GIPA Act, Sch 2, cl 2). 1. I agree with the Appeal Panel's reasoning and findings in relation to the scope of 'relates to' as it is used in the definition of 'excluded information in Sch 2 and Sch 4 of the GIPA Act, and agree with the Respondent that the Appeal Panel's reasoning in these paragraphs clearly forms part of the ratio of its decision, and is therefore not obiter dictum. 2. I also agree with the Respondent's submission that whilst the Tribunal is not bound as a matter of strict precedent to follow the conclusions of the Appeal Panel in the Beregi Appeal, they should be followed as a matter of comity. The Tribunal should exercise caution in re-opening prior, considered rulings of an earlier Tribunal unless of the view that the previous decision is 'clearly wrong', and there is a new or significant argument later raised: see Rittau v Commissioner of Police, NSW Police Service [2000] NSWADT 186; ALZ v SafeWork NSW (No 2) [2016] NSWCATAD 121; BY v Director General, Attorney-General's Department [2002] NSWADT 79; Bevege v Commissioner of Police, NSW Police Force [2014] NSWCATAD 22; Ku-ring-gai Council v NSW Department of Premier and Cabinet [2016] NSWCATAD 181 at [15] to [17]. As stated in The Owners – Strata Plan No 80412 v Vickery (Costs) [2020] NSWCATAP 48 at [15]: Considerations of consistency and maintaining public confidence in the legal process weigh heavily in favour of tribunals at first instance and on appeal following this Appeal Panel's substantive decision. 1. There is nothing in the Applicant's written submissions which establishes that the decisions in Beregi or the Beregi Appeal are clearly wrong. The distinction drawn by the Applicant between the subject matter of Beregi and these proceedings also does not convince me that the conclusion at [27] of Beregi and upheld in the Beregi Appeal, that the complaint handling and investigative functions of the Respondent encompass matters from the receipt of a complaint up to and including its resolution, does not equally apply to the subject matter in these proceedings. 2. In Beregi and the Beregi Appeal that conclusion was based on the evidence of Ms Brown in relation to the application of s 430 of the LGA. Ms Brown has provided evidence in these proceedings regarding processes by which the Respondent deals with complaints made against local councillors pursuant to Chapter 13 Part 5 Division 1 of the LGA and sections 440H and 440I of the LGA. According to her evidence, the investigation of a complaint against a local councillor pursuant to s 429A includes the preparation of a departmental report, which may lead to a recommendation of disciplinary action, as occurred in relation to the complaints referred by Wagga City Council to the Respondent made about Councillor Funnell's conduct on 19 November 2018. She confirmed that it was the practice of the Office of Local Government to keep departmental reports confidential, and whilst a copy of the departmental report was provided to Councillor Funnell, it was not provided to Wagga City Council. I accept Ms Brown's evidence in these proceedings to the effect that the preparation of the departmental report and the documents forming the basis of the Respondent's decision making with respect to the imposition of disciplinary action on Councillor Funnell formed part of the practice and processes of the Office of Local Government in exercising its complaints handling and investigative functions under the LGA. 3. The Tribunal therefore finds that the documents sought by the Applicant in his access application would fall into the definition of 'excluded information' of the Office of Local Government pursuant to Sch 2 and s 43 of the GIPA Act. Justification of the Respondent's decision 1. The Information Commissioner submitted that consideration of whether an access application was valid pursuant to s 43 of the GIPA Act involves the agency identifying which parts of the government information sought would be 'excluded information' pursuant to Sch 2, and excising the excluded information so that the remaining government information would then constitute a valid access application. Section 43 does not operate to exempt an agency, at large, from complying with an access application: The agency must still comply with its decision-making obligations under Part 4 with respect to the remaining information contained in the valid part of the application. The agency must demonstrate its decision by distinguishing (if applicable) government information that is not "excluded information" from government information that is. 1. I accept that submission. Ms Brown's statement and her evidence at hearing was to the effect that limited searches were conducted for the material sought in the access application, and a 'quick look at the preliminary file' indicated that the information fell within the 'excluded information' definition in Sch 2. Her assessment was based on previous decisions of the Tribunal which had held that there was a broad scope to the 'complaints handling and investigative functions' pursuant to the LGA. 2. The question then is whether this was sufficient for the Respondent to justify its decision that the access application was invalid pursuant to s 43 of the GIPA Act. The Information Commissioner submitted: The words "to the extent" in section 43(2) also indicate the nature of the decision-making requirement on the agency to demonstrate how it has engaged with, reviewed and examined all of the information sought under the Act. This requirement must also be demonstrated where all the information sought is determined to be excluded information. … For section 43 invalidity, the question that the information "relates to" the Schedule 2 functions is a question of fact. In questions about information relating to an agency's functions generally, the Tribunal has stated that where facts are wholly within an agency's peculiar knowledge, it is for the agency to provide evidence to the Tribunal to support its position and in some matters, the documents themselves may be sufficient evidence: AFW v Workcover Authority of New South Wales [2012] NSWADT 136 at [48]. … The decision-maker must comply with, and demonstrate, the statutory requirement that the information is of a kind that is subject to Schedule 2 and has been found to be excluded information. 1. I don't accept that the agency needs to examine all of the information sought by the access application in order to make a decision whether or not the access application is a valid access application. Section 51 of the GIPA Act makes clear that the agency in receipt of an access application needs to make an 'initial decision' as to its validity, which is what has occurred here. I agree with the Respondent's submission that where the access application on its terms seeks only documents which would fall squarely within the 'excluded information' outlined in Sch 2, there is no obligation on them to 'engage with, review and examine' each of the documents which would be caught by the access information to make the validity decision. All that is required is that the agency complies with s 51 of the GIPA Act in making that decision: notifying the applicant within 5 working days that the application was invalid pursuant to s 51(1)(b) and 51(2). The decision is presumed correct, pursuant to s 51(5), subject to any review sought. If a review is sought, the onus will be on the Respondent to justify its decision pursuant to s 105 of the GIPA Act. How it does so will depend on the circumstances of the case. As submitted by the Information Commissioner: While not without doubt, an agency may be able to make an invalidity decision without examining the records sought or conducting searches for information pursuant to section 53. This is because it may be apparent from the access application or by reference to the records themselves as to whether they relate to the agency's functions specified in Schedule 2. However, in many cases, searching for government information held at the time the application was received pursuant to section 53 and examining the records held will be appropriate. This approach allows the agency to ascertain whether the information sought "relates to" its functions identified in Schedule 2 and reduces the chance of the agency making an incorrect initial decision in relation to validity. 1. I accept that submission and find that in these proceedings it was sufficient for the Respondent to conduct the limited searches it did to ascertain whether the information sought by the access application would fall within the 'excluded information' identified in Sch 2 of the GIPA Act. 2. As anticipated by the words 'to the extent to' in s 43(2) of the GIPA Act, the Respondent must consider whether all of the information sought by the access application would be 'excluded information' pursuant to Sch 2, or whether there was some remaining information that should be excised from the access application, which would have the effect that the remaining government information may then constitute a valid access application. I am satisfied on the basis of Ms Brown's evidence and on my review of the access application that all of the information sought by this access application would be 'excluded information'. 3. It follows that there is no basis upon which the Tribunal should consider the public interest considerations in favour of providing access to the information sought: Fearnley v Health Care Complaints Commission [2020] NSWCATAD 30 at [55], Beregi at [21]; Yee v Medical Council of NSW [2017] NSWCATAD 370 at [41]. There is also no basis upon which the personal factors of the Applicant would be relevant, as they otherwise would be in a valid access application pursuant to s 55 of the GIPA Act: Clark v NSW Trustee and Guardian [2019] NSWCATAD 73 at [42], so the Applicant's personal reasons for seeking access to the information as outlined in his statement are irrelevant. Conclusion 1. The Respondent refunded the application fee paid by the Applicant and there was no dispute that it had complied with the requirements of s 52(1) of the GIPA Act in notifying the Applicant of its decision. 2. Accordingly, the correct and preferable decision is for the Tribunal to affirm the Respondent's decision of 8 March 2021 that the Applicant's access application dated 5 March 2021 was not a valid access application. Orders 1. The Respondent's decision of 8 March 2021 is affirmed. ********** 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: 09 May 2022