Civil and Administrative Tribunal New South Wales Medium Neutral Citation: He Zhang v Law Enforcement Conduct Commission [2024] NSWCATAD 158 Hearing dates: 9 May 2024 Date of orders: 12 June 2024 Decision date: 12 June 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: M Griffin, Senior Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATIVE LAW-government information public access-excluded information-invalid application-Government Information (Public Access) Act 2009 (NSW) Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 Cases Cited: Beregi v Department of Planning, Industry and Environment [2020] NSWCATAP 185 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77 Robertson v Deputy Secretary Local Government, Planning and Policy [2022] NSWCATAD 147 Sethi v NSW Crime Commission [2024] NSWCATAD 21 Texts Cited: Nil Category: Principal judgment Parties: Jun He Zhang (Applicant) Law Enforcement Conduct Commission (Respondent) Representation: Applicant (Self-Represented) Crown Solicitor (Respondent) File Number(s): 2024/00011284 Publication restriction: Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), the Confidential Affidavit of Lauren Berrell is not to be published or released to the Applicant or the public. REASONS FOR DECISION Introduction 1. The applicant seeks administrative review of the internal review decision of the respondent, dated 6 December 2023, that decided his application under the Government Information Public Access Act 2009 (the GIPA Act) was invalid, pursuant to section 43 of the GIPA Act, on the basis that it sought excluded information of the respondent. Background 1. On 4 May 2023, the applicant lodged an application to the respondent under the GIPA Act. The application made serious allegations against certain law enforcement officials. On 18 May 2023, the respondent wrote to the applicant requesting further details of the information he was seeking access to. The applicant replied to that request, but the response did not clarify the information sought. On 27 June 2023, the respondent notified the applicant of the decision that: 13 documents were released to the applicant on the basis that they comprised the applicant's own personal information, being documents either received by or sent to the applicant; the Commission did not hold court records; and the application was otherwise invalid, to the extent that it sought excluded information within the meaning of clause 2 of Schedule 2 of the GIPA Act, by reason of section 43(2) of that Act. 2. On 15 July 2023, the applicant requested an internal review of the respondent's decision. 3. On 27 July 2023, the respondent wrote to the applicant notifying him of the decision on his internal review application. 4. On 5 September 2023, the respondent was notified of the applicant's request for external review by the Information Commissioner. 5. On 28 November 2023, the Information Commissioner notified the respondent of the outcome of her review. Relevantly, the Information Commissioner made a recommendation pursuant to section 93 of the GIPA Act that the Commission reconsider its decision. 6. On 6 December 2023, the respondent notified the applicant of the outcome of the second internal review. That decision confirmed the original internal review decision. That decision is the decision under review by this tribunal. Procedural matters 1. In his written submissions to the tribunal, the applicant mentioned the Australian Commission for Law Enforcement Integrity (ACLEI). At the outset of the hearing, the tribunal advised the parties that he had been the ACLEI Commissioner from 2015 to 2020, that he had no knowledge of the applicant or of any information relating to him and offered the parties the opportunity to comment on him hearing this matter. There were no objections. 2. The respondent requested a non-publication direction for an affidavit prepared and submitted in confidence by a staff member of the respondent. In reply to this request, the applicant said, "the respondent gives empty statements". Having read the affidavit, the tribunal was satisfied a non-publication direction was appropriate and that order was made. Evidence 1. The applicant attended the tribunal hearing and gave sworn evidence with the assistance of an interpreter. The applicant effectively rehearsed the content of his prior written submissions. The respondent described those submissions as "difficult to follow". That description is not unreasonable. The applicant's written submissions and his oral evidence were confusing, discursive and non-specific. 2. The respondent decided the original access application on the basis "that the applicant was seeking, broadly: any documents with his name; any documents from him; and any documents in Operation Winjana provided by him". The respondent later submitted, "To the best of the respondent's understanding, it appears that the applicant is now seeking information in relation to: a plot against himself and / or his wife; and the loss of his personal property. Those categories of information do not emerge from the original access application, nor from the applicant's subsequent correspondence with the respondent. It is not open to the applicant to alter the scope of the access application in the course of these administrative review proceedings. The time to amend the application, if at all, was before a decision was made: section 49 of the GIPA Act". However, the tribunal notes the original access application refers to a plot in paragraph 9 and to missing property in paragraph 13. Therefore, the tribunal is satisfied that those matters fall within the scope of the access application. 3. The tribunal understands from the written and oral evidence of the applicant, that he seeks access to: any documents with his name; any documents from him; any documents in relation to Operation Winjana provided by him; any information relating to a plot against himself and / or his wife; and the loss of his personal property. The other evidence is vague and amounts to generalised allegations of corruption by various individuals but contains no specific detail and says nothing relevant about the decision under review. 4. The respondent put into evidence, two affidavits made by one of its members of staff, a legal officer named Lauren Berrell. One of these is a confidential document which has been made the subject of a non-publication order. The other is an open document, in which the deponent states, "I am aware that the applicant has made complaints to the former PIC [Police Integrity Commission] and has had interactions with the PIC in relation to those complaints. Further details of these interactions are provided in my confidential affidavit at paragraphs 9 to 17. Having regard to the nature of the applicant's interactions with the Commission, and the background information he provided in his initial application and subsequent correspondence of 24 and 25 May 2023, I consider that the applicant's application, on its face, is seeking access to information that relates to the handling of misconduct matters and investigative functions of the Commission. The only information held by the Commission that would not be excluded information, is information that relates to the exercise of its incidental and corporate services functions. For example, if the applicant had participated in any recruitment processes with the Commission, the resulting records would not be the Commission's excluded information... 5. "The Commission's primary case management system is known as LOIS. This database is used to securely file and store any information in respect of complaints made to the Commission. From my review of the Commission's files, I can see that on 27 June 2023, the applicant was provided with 13 documents, which may broadly be described as direct correspondence between the applicant and the PIC. I understand that those documents were identified as a result of searches undertaken of LOIS. This information has been provided to the applicant voluntarily, notwithstanding that it is excluded information of the Commission... To the extent that the Commission holds other information on LOIS that is responsive to the applicants request for information, that information would all be information that relates to the misconduct handling and investigative functions of the Commission. 6. "The Commission also uses the 'SharePoint' system to hold all information relating to the Commissioner's corporate services and requests for information made under the GIPA Act. This information would not typically be excluded information of the Commission under Schedule 2 of the GIPA Act. In preparing this affidavit, I conducted a further search of SharePoint to confirm that no further information responsive to the applicant's access application, and which is not excluded information, is held by the Commissions corporate services. I did this by entering the search terms 'Jun He Zhang' and 'Jun Zhang'. I determined that there was no additional information held by the Commission in this part of its records." Issue for decision 1. The essential issue for this review to decide is whether, or not, the decision under review is the correct or preferable decision. That is, is the personal information that the applicant seeks to access, excluded information for the purposes of the law, that cannot be disclosed to him. Legislative framework 1. The object of the GIPA Act is found in section 3 which states, relevantly: (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: … (b) by 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. 1. Section 3(2), of the Act, provides: (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 possible cost, access to government information 1. Part 2 of the GIPA Act contains general principles relating to open government information. 2. Division 1 of that Part concerns ways of accessing government information. This includes, in s 5, a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. It also confers, in s 9(1), a legally enforceable right on a person who makes an access application to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information. Section 11 provides that the GIPA Act overrides a provision of any other Act or statutory rule that prohibits the disclosure of information other than a provision of a law listed in Schedule 1 as an overriding secrecy law. 3. Division 2 of Part 2 of the GIPA Act concerns public interest considerations related to access to government information. This includes, in s 12(1), a prescription that there is a general public interest in favour of the disclosure of government information. 4. Section 13 contains a "public interest test" which is to be applied in determining whether access is to be provided to government information. It provides that there is an overriding public interest against disclosure of government information if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. 5. The public interest considerations against disclosure of government information are found in s 14 of the Act. Section 14(1) provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. In this respect Schedule 1 provides: Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure (Table 14) … 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. … 1. Part 4 of the GIPA Act deals with access applications. Division 1 of that Part is concerned with making an access application. In this respect s 43 provides: 43 Access application cannot be made for excluded information (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. With respect to s 43, Schedule 2 of the GIPA Act provides, relevantly: 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 the 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 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. 1. Division 3 in that Part prescribes the process for dealing with access applications. Section 51 requires an agency to make an initial decision as to the validity of an application. It provides, relevantly: 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 ...] (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.] … (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. Part 5 of the GIPA Act concerns the review of reviewable decisions under that Act. Division 4 of that Part concerns administrative review by the Tribunal. Section 105 in that Division imposes an onus on an agency to justify its decisions. It provides, relevantly: 105 Onus on agency to justify decision (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, …. Consideration and findings 1. The effect of section 43 and Schedule 2 of the GIPA Act, is to provide a regime for dealing with applications made to agencies listed in Schedule 2 for "excluded information" of those agencies. Where it is apparent from the face of an application that the information requested is excluded information of the Schedule 2 agency, the obligation to deal with the application as a valid access application under Part 4 does not arise. "Excluded information" is defined to mean information held by an agency that relates to any function of that agency which is specified in Schedule 2 (emphasis added). The specified functions of the respondent are: prevention, handling of misconduct matters (within the meaning of the Law Enforcement Conduct Commission Act 2016), investigative and reporting functions. 2. The meaning of the term "relates to", as used in the chapeau of Schedule 2 of the GIPA Act, has been the subject of discussion in several cases before the Tribunal. Although not bound by these previous decisions, they are nevertheless instructive for this consideration. The Appeal Panel in Beregi v Department of Planning, Industry and Environment [2020] NSWCATAP 185 (Beregi) held that the words "relates to" should be given a broad meaning and signified that information which has a "broad connection" with the excluded function will be excluded information for the purposes of section 43(2). The decision states: "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...". 3. Similarly, the Tribunal said in Rawan Arraf v NSW Crime Commission [2022] NSWCATAD 8 that, in construing the words "relates to", "it is to be accepted that it is not necessary that the relationship be direct or substantial, but that an indirect and less substantial connection will suffice". In Robertson v Deputy Secretary Local Government, Planning and Policy (2022) NSWCATAD 147, the Tribunal followed Beregi. In a more recent, first instance decision, Sethi v NSW Crime Commission [2024] NSWCATAD 21, the Tribunal stated [at 113], "…the question the Tribunal must ask itself is whether the information sought by the applicant in his access application is, to any extent, demonstrably related to a specific excluded function of the agency" (emphasis added). 4. With respect, I see no reason for this gloss to be placed upon the plain words of the Act. As was said earlier in Sethi [at 110], "The information will either relate to the function or not". This tribunal prefers the Beregi formulation of "…government information having a broad connection to the [LECC's] complaint handling and investigative functions". 5. Under s 63 of the Administrative Decisions Review Act the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the respondent's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77). 6. Having regard to all of the evidence and in particular, the evidence of Ms Burrell, the tribunal is satisfied the information that the applicant seeks access to, relates to the clause 2 of Schedule 2 specified functions of the LECC, namely, complaint handling and investigative functions and is therefore excluded information for the purposes of the GIPA Act. 7. The tribunal finds the applicant's access application is not valid. The tribunal finds the decision under review is the correct and preferable decision. Decision 1. The decision under review 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: 12 June 2024