Radovski v Commissioner for Fair Trading [2021] NSWCATOD 223

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Radovski v Commissioner for Fair Trading [2021] NSWCATOD 223 Hearing dates: 8 April 2021 Date of orders: 4 June 2021 Decision date: 04 June 2021 Jurisdiction: Occupational Division Before: C Ludlow, Senior Member Decision: 1. The decision under review is set aside. 2. In substitution of the decision under review, a copy of the applicant's March 2020 examination paper is to be disclosed to the applicant within 28 days of the date of this decision. Catchwords: FREEDOM OF INFORMATION – government information – prejudice to agency functions – prejudice to conduct, effectiveness or integrity of test – evidentiary onus on respondent Legislation Cited: Administrative Decisions Review Act 1998 (NSW) Building and Development Certifiers Act 2018 (NSW) Evidence Act 1995 (NSW) Government Information (Public Access) Act 2009 (NSW) Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 McKinnon v Secretary, Department of Treasury [2006] HCA 45 Mannix v Department of Education and Communities [2014] NSWCATAD 35 Texts Cited: None Category: Principal judgment Parties: Peco Radovski (Applicant) Commissioner for Fair Trading (Respondent) Representation: Applicant (Self-Represented) Department of Customer Service (Respondent) File Number(s): 2020/00365195 Publication restriction: None

REASONS FOR DECISION

Background 1. Mr Peco Radovski is seeking review of a decision by the Commissioner for Fair Trading to refuse him access to information he has requested under the Government Information (Public Access) Act 2009 (GIPA Act). 2. The applicant sat for an examination set by the Building Professionals Board in March 2020 to become an accredited certifier. He was notified that he had he had not received a sufficiently high score to be registered as a certifier. He sought information under the GIPA Act as follows: "…access to the exam paper document and the examiner or independent panel to be able to understand examiners findings…" 1. It was not disputed by the applicant that the respondent arranged a meeting with him at which his examination results were explained and he was advised to undertake a short course before resitting the examination. However this did not resolve his concerns and he sought access to the examination paper under the GIPA Act. The respondent refused Mr Radovski's request for access to the examination paper and his answers in reliance upon the public interest considerations against disclosure in clauses 1(f) and 1(h) of s 14 in the GIPA Act. 2. Mr Radovski sought a review by the Information Commissioner. The Information Commissioner did not recommend that the respondent make a different decision. On internal review the respondent affirmed its previous decision.