Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Carney v Transport for NSW [2025] NSWCATAD 13 Hearing dates: 6 December 2023 Date of orders: 14 January 2025 Decision date: 14 January 2025 Jurisdiction: Administrative and Equal Opportunity Division Before: P H Molony, Senior Member Decision: The administrative review application is dismissed under the s 55(1)(a) on the ground that it is misconceived and lacking in substance. Catchwords: ADMINISTRATIVE LAW — Freedom of information – Government Information (Public Access) Act 2009 (NSW) – whether request for information intended as an access application – s 41 – mandatory requirements for a valid access application - distinction between access application and informal application for information – no jurisdiction to review decision made with respect to informal application. Legislation Cited: Australian Securities Commission Act 1989 (Cth) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Legal Profession Practice Act 1958 (Vic) Cases Cited: Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 138 ALR 655; (1996) 70 FCR 93 Cornall v AB (A Solicitor) [1995] 1 VR 372 Howard v Department of Communities and Justice - Housing [2023] NSWCATAD 18 Texts Cited: None Category: Procedural rulings Parties: Francis Carney (Applicant) Transport for NSW (Respondent) Representation: Solicitors: Applicant (Self-Represented) K Hudson (Transport for NSW) (Respondent) File Number(s): 2023/00207249 Publication restriction: None reasons for decision Introduction 1. On 28 June 2023 the applicant filed an application for administrative review of what he says is a reviewable decision made under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) by Transport for NSW (Cities and Active Transport and Placemaking NSW), being the agency and its relevant units at the time (the agency). In an email to the applicant on 20 April 2023 the agency advised that it did have the CCTV footage asked for by the applicant, of a male person slipping in George Street, between 1 and 2am on 26 February 2023 (the purported decision). 2. There has been no internal review of the purported decision. The applicant says he was told there was no internal review procedure when he asked the agency about the correct procedure. 3. The agency's position is that there was no decision made by it with respect to a valid access application that complied with the requirements of s 41 of the GIPA Act. Rather, the agency says that the applicant had made an informal request relating to the CCTV footage under s 8 of the GIPA Act, and that the email of 20 April 2023 was simply a response to that informal request. The agency says it was not a decision with respect to an access application made under the GIPA Act. In doing so, the agency relies on the requirement of s 41. 4. After the applicant made the administrative review application, the agency made an application in proceedings seeking to have the administrative review application summarily dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) on the basis that it is misconceived and lacking in substance. 5. That preliminary application was heard before Senior Member French on 6 December 2023. Evidence was taken and submissions heard from both parties, following which the Tribunal reserved its decision. 6. On 12 December 2024, Justice Armstrong, the President of NCAT, exercised her power under s 52 of the NCAT Act to reconstitute the Tribunal hearing the matter and appointed me as presiding member, to replace Senior Member French. She did so having sought and considered submissions regarding the proposed reconstitution. 7. Section 52 provides: (1) The President may replace the member, or one of the members, constituting the Tribunal after the consideration of a matter by the Tribunal has commenced if, before the matter is determined, the member— (a) becomes unavailable for any reason, or (b) ceases to be a member, or (c) ceases to have a qualification required for participation in the proceedings, or (d) is directed by the President not to take part in the proceedings. (2) The President may not replace a member unless the President has first— (a) afforded the parties an opportunity to make submissions about the proposed replacement, and (b) taken any such submissions into account. (2A) The President must not make a direction under subsection (1)(d) in relation to a member unless the President— (a) has consulted the member, if it is reasonably practicable to do so, and (b) is satisfied that making the direction is— (i) in the interests of justice, and (ii) in the interests of achieving the expeditious and efficient conduct of the proceedings, and (iii) otherwise appropriate having regard to the objects of this Act. (2B) The President may give directions as to the member or members who are to constitute the Tribunal after the consideration of a matter by the Tribunal has commenced. (3) The Tribunal as reconstituted under this section is to have regard to the evidence, submissions and decisions in relation to the matter that were given or made before the Tribunal was reconstituted. 1. In accordance with s 52(3) of the NCAT Act, I have now proceeded to determine the decision reserved by the Tribunal on 6 December 2023 with respect to the agency's application for summary dismissal. 2. I have concluded that the applicant's administrative review application should be dismissed under s 55(1)(a) because it is misconceived and lacking in substance. Material before reconstituted Tribunal 1. In doing so I have had regard to the following material: 1. Filed by the applicant – 1. Administrative review application filed 28 June 2023 with attachments. 2. Submission from the applicant dated 1 November 2023 with attachments. 3. Additional material filed by the applicant under cover of an email dated 7 September 2023 with attachments. 4. Affidavit of the applicant dated 11 July 2023 with attachments. 1. Filed by the agency – 1. Submission from the agency dated 15 November 2023. 2. Affidavit of J P Whitbourn, sworn 3 November 2023, with annexures. 3. Letter from the agency to the applicant dated 6 July 2023. 1. All orders made by the Tribunal up to and including the order reserving the Tribunal's decision made on 6 December 2023. 2. Full transcript of the hearing before the Tribunal on 6 December 2023. 3. The reconstitution order made by the President on 12 December 2024. 1. I note that some of the material relied on by the applicant, and some of his submissions made at the hearing, relate to issues that extend beyond whether or not the administrative review application should be summarily dismissed. They go to the merits of that application. In the hearing, Senior Member French indicated that he did not regard that material as relevant to the summary dismissal issues. I am of a similar view. I have not had regard to evidence and submissions going to the merits of the administrative review application, which is not relevant to the summary dismissal application. Background 1. There is no dispute between the parties as to the facts concerning the applicant's requests to the agency regarding the CCTV footage, or of the facts relating to the purported decision. The parties differ as to the consequences that follow from those facts. 2. On 17 April 2023 the applicant sent emails (annexures A, B and C to Mr Whitbourn's affidavit) to various agencies that he suspected might manage the CCTV camera with which he was concerned. He - and certain public servants with whom he dealt - were not then aware of machinery of government changes, commencing 1 April 2023, which had placed the camera and Placemaking NSW (a business unit of the NSW Government), which managed it, in the Department of Transport at that time. 3. Each email contained the following relevant passage: I (member of the public) am keen to use the appropriate (GIPA) application to request CCTV footage (footage of me at a time on a single certain date during late feb 2023). Are you guys the owners/custodians of the George St (The Rocks) street pole CCTV camera in the attached image. The camera in question is near the Rocks police station. Attached is an image of the camera in the Rocks. Please advise the appropriate procedure (eg "pay $30 fee with this form and include these details XYZ …") for me to request CCTV footage. 1. One of those emails (annexure B) was address to a named officer, Mr Craig, at Placemaking NSW, whom the applicant has been advised to approach. 2. Mr Craig replied, by email, the next day advising that the CCTV camera was owned by Placemaking NSW (annexure D to Mr Whitbourn's affidavit). That email continued: We keep footage from all our camera as a policy. Footage is only released in 1 of 2 ways under the Electronic Surveillance Systems Policy. 1. Police request and provide an Event Number. 2. Subpoenaed by a solicitor/insurer on behalf of a member of public or business. Under GIPA request, we can provide incident reports and other data acquired form an incident that has been reported to PMNSW. If you have details of an incident, I am happy to see if we have information or saved CCTV for the incident or issue which may save you time. If we do then I can let you know and you will need to apply using the attached and links. If you think that that this applies to the information you require, you can contact us by email at gipa@dpie.nsw.gov.au to make an informal request, or by phone to … How can I access information? – (nsw.gov.au) 1. On 19 April 2023 Mr Craig and the applicant talked on the phone. The applicant has provided a detailed account of that conversation in his affidavit. In that affidavit, about which he was not cross examined, the applicant says: * He provided Mr Craig with details of the location of the camera and of the incident he was seeking CCTV footage for. * Mr Craig said he knew the camera and promised to get back to the applicant. * The applicant told Mr Craig he had applied to the Police for their CCTV footage from other cameras and had paid them a fee of $30. He asked how he could pay Placemaking NSW. Mr Craig replied to the effect of: Don't worry about the fee at this stage, let's see that we have the footage of you before that, the team are very efficient at this so leave this with me and I'll get back to you today or tomorrow. 1. The agency has not produced any evidence from Mr Craig. In his affidavit Mr Whitbourn, who was not personally involved in the matter, acknowledges that Mr Craig and the applicant, "liaised in relation to the management of the information request", which he maintains was treated as an informal request for information under s 8 of the GIPA Act. 2. In those circumstances, I accept the applicant's uncontested evidence as to what occurred during his telephone conversation with Mr Craig. 3. On 20 April 2023, Mr Craig emailed the applicant confirming their conversation the day before and restating the information provided about the CCTV footage wanted by the applicant. The email (annexure E to Mr Whitbourn's affidavit) continued: Following a review of cameras in the area, unfortunately we have no CCTV footage records for the 26th of Feb from this area in our possession due to the time period expiring. Also no incident reported in Security reports or Radio Logs. Also as discussed that the area where the incident occurred is owned by Port Authority NSW. Any further requests for information will need to be directed to them. 1. On 10 May 2023, the applicant says he spoke with a person he identified as "Jen" from The Rocks Team, at Placemaking NSW. His contemporaneous notes of that conversation read: Spoke with Jen. When I requested a review of the decision made and communicated by [Mr Craig] then Jen said "there is no internal Review procedure available. Jen suggested that if I wish to complain about [Mr Craig's] decision not to allow me access to CCTV on 26 Feb 2023 they (sic) "you could try NCAT, I don't know." 1. There is no evidence to the contrary. 2. On 22 June 2024 the applicant filed an administrative review application in which he sought to review what he maintains is a decision, made by Mr Craig with respect to an access application under the GIPA Act, contained in the email of 17 April 2023. 3. The agency then sought to have that application summarily dismissed. Consideration. 1. Section 41 of the GIPA Act is concerned with making an access application to access government information. "Access application" is defined ins 4: access application means an application for access to government information under Part 4 that is a valid access application under that Part. 1. Section 41 is the first section in Part 4 of the Act – Access applications – which extends from s 41 to s 79. It says: (1) 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. Note— See section 51A concerning the effect of a waiver, reduction or refund of the fee for an access application. See also section 52 (3) concerning assistance to be afforded by an agency to an access applicant. (1A) If the applicant has applied at any time to another agency for substantially the same information, an application must also include the name of the other agency. However, failure to comply with this subsection does not affect the validity of an application. (2) An agency may approve additional facilities for the making of an access application or the payment of an application fee. (3) An access application is not considered to have been received by an agency until it is actually received by the agency. 1. The GIPA Act also makes provision for the making of informal requests for access to government information. Section 8 provides: (1) An agency is authorised to release government information held by it to a person in response to an informal request by the person (that is, a request that is not an access application) unless there is an overriding public interest against disclosure of the information. (2) An agency can release government information in response to an informal request subject to any reasonable conditions that the agency thinks fit to impose. (3) An agency cannot be required to disclose government information pursuant to an informal request and cannot be required to consider an informal request for government information. (4) An agency can decide by what means information is to be released in response to an informal request. (5) An agency can facilitate public access to government information contained in a record by deleting matter from a copy of the record to be released in response to an informal request if inclusion of the matter would otherwise result in there being an overriding public interest against disclosure of the record. (6) The functions of an agency under this section may only be exercised by or with the authority (given either generally or in a particular case) of the principal officer of the agency. 1. An informal request under s 8 does not require payment of a fee or mirror any of the formal requirements of an access application under s 41, although as a matter of practicality the information sought will have to be sufficiently identified. 2. The requirements of s 41(1) are mandatory: see Howard v Department of Communities and Justice - Housing [2023] NSWCATAD 18 at [38] where the Tribunal said: … an 'application' will not be an "access application" that attracts the operation of the GIPA Act unless the formal requirements contained in s 41(1) are satisfied. One of those formal requirements is the payment of an application fee. 1. Those other requirements relevantly include the requirement in s 41(1)(b) that the application or request "must clearly indicate that it is an access application made under this Act." 2. Once an application for access to government information is received, s 51 requires that the agency determine if it is a valid access 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. In this case, the applicant has not paid a fee and did not expressly state in the email of 17 April 2023 to Mr Craig that he was making an access application under the GIPA Act. 2. While the applicant insists that was his intention, the email did not make that clear. Rather, the email sought information as to whether the CCTV camera in issue was managed by Mr Craig's agency, so that the applicant could make the "appropriate (GIPA) application" which he was "keen to use". Although the applicant did not use a question mark in his email, it conveyed the sense that he was asking Mr Craig if the agency managed the CCTV camera, and, if so, for advice as to how to go about making an access application under the GIPA Act. 3. The agency says that following the applicant's email of 17 April 2023 and the phone conversation on 18 April 2023, Mr Craig (and the agency) treated the email as an informal request for information rather than an access application. The content of Mr Craig's email of 18 April 2023 while not expressly stating this, does point that being the case. It tells the applicant, if relevant information exists, how he can then go about accessing it. As a consequence, the agency says that Mr Craig's final email of 20 April 2023, in which he advised the applicant that there was no CCTV footage or incident reports containing relevant information, was simply advice to that effect in response to an informal request, rather than any of the decisions that the agency could have made under s 58 in response to a valid access application. Specifically, the agency says it was not a decision that the information was not held, made in response to an access application. 4. Section 58(1) states: (1) An agency decides an access application for government information by— (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. 1. There is no suggestion that the applicant paid a fee; just that he was ready and willing to do so. This, he said, included being prepared to pay by credit card over the phone during his conversation with Mr Craig on 18 May 2023. There is no suggestion that the applicant sought a waiver or reduction of the relevant fee under s 51A. 2. The applicant argues that there was an obligation on the agency, to provide him with the assistance required by s 52, because it decided that his email of 17 April 2023 was an invalid access application. There is no evidence that it did so. Section 52 says: (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. (2) The application becomes a valid access application if the applicant pays the required fee or provides the required information (as appropriate), and is then deemed to have been made when the fee or information was received by the agency. (3) An agency must provide advice and assistance, so far as it would be reasonable to expect the agency to do so, to assist an applicant to provide such information as may be necessary to enable the applicant to make a valid access application. (4) (Repealed) (5) An applicant is entitled to a refund of any application fee that accompanied an invalid access application (unless the application subsequently becomes valid). 1. The agency takes issue with this arguing that it did not make any decision about an access application, as there was no access application made. 2. The importance of this is that if there was a decision that the applicant's request in his email of 17 April 2023 was an invalid access application, or, alternately, a decision that the information he sought was not held by the agency, then both are reviewable decisions which the Tribunal has jurisdiction to hear: see s 80(a) and (e). If that were the case, then the Tribunal would have jurisdiction to administratively review those decisions. 3. When an agency receives a request for information that, "it appears is intended as an access application," s 51 requires the agency to decide if it is a valid access application or not. If it appears to be a valid access application, it is to be processed as required by the GIPA Act. If appears to be an invalid access application, the agency is to act as required by s 52, including providing reasons for that invalidity and an opportunity for the applicant to remedy defects, including payment of the fee. In submissions, the applicant argued that it was incumbent on the agency to undertake these requirements in his case, but that it did not do so. 4. Section 51 is silent as to what is to occur when an agency receives a request for information that it appears is not intended as an access application. That such a request is contemplated by the Act is made clear by s 8, which makes provision for informal requests, "(that is, a request that is not an access application)". The use of the words, "it appears is intended as an access application" in s 51 indicates that the agency is to make an evaluative judgement as to whether or not a request appears to be intended as an access application. The alternative is that it could be an informal request to which s 8 applies. In Australian Securities Commission v Deloitte Touche Tohmatsu (1996) 138 ALR 655 at 679 - 681; (1996) 70 FCR 93, the Full Court of the Federal Court reviewed the authorities with respect to the meaning of the words "it appears" in a variety of statutory context. In the context of s 50 of Australian Securities Commission Act 1989 (Cth) which authorised the ASC to commence certain proceedings in a person's name where, "it appears to the [ASC] to be in the public interest for a person to begin and carry on a proceeding" the Court held that it "was intended to confer an extremely wide discretion" on the ASC: at 680. The presence of the requirement that the discretion be exercised in the public interest was important to the breadth of the discretion. In Cornall v AB (A Solicitor) [1995] 1 VR 372 the Appeal Division of the Victorian Supreme Court considered s38Q of the Legal Profession Practice Act 1958 (Vic) which authorised the Secretary of the Law Institute to refer a matter to the Solicitors Board if "of opinion that there appears to have been misconduct or a standards breach". The fill court held that: The section requires only that the secretary form a prima facie opinion, namely that there has apparently been conduct requiring consideration at a hearing by the registrar or the Solicitors' Board or the exercise of the secretary's powers under s84. 1. In my opinion, the agency when forming an opinion under s 8 of the GIPA Act as to whether it appears that a request for information is intended to be an access application, only requires that the agency forms a prima facie opinion, namely that the request for information is apparently intended to be an access application. Importantly, a decision as to whether or not "an application for access to government information" appears to be intended to be an access application" under s 41 or an informal application is not a reviewable decision under s 80. The existence of this distinction and the need for it to be recognised flows from the use of the words "it appears is intended" in s 41(1). Without the requirement to assess the apparent intention underlying requests for information, all information requests would have to be assessed as valid access applications or not under s 52. It can be argued, as a matter of policy, that would be the preferred course and would avoid difficulties such as those under consideration here. 2. Here it is apparent that the agency never treated the applicant's request for information as an access application. Whatever the applicant's claimed intentions, the agency had good cause for not doing so on objective criteria. These were: * The nature of the inquiry made by the applicant in his email of 17 April 2023 seeking to discover if the agency managed the CCTV camera and, if so, seeking advice as to how to proceed. * The fact that no fee was tendered, irrespective of the applicant's willingness to pay. * The fact that the email of 17 April 2023 to Mr Craig did not clearly indicate it was an access application. 1. It follows that there was no reviewable decision, as set out in s 80 of the GIPA Act, concerning which an application for administrative review can be made to the Tribunal under s 100 of that Act. As a result, the Tribunal has no jurisdiction to hear the administrative review application, or to review a decision made by an agency with respect to an informal application. 2. I will therefore dismiss the application under the s 55(1)(a) of the NCAT Act on the ground that it is misconceived and without substance. 3. I note that if I am wrong about operation of s 41, and there was an intended access application, then the Tribunal would have jurisdiction to review the decision made by the agency. For the reasons already given, the correct and preferable decision with respect to that intended access application on review would be to find that it was not a valid access application, as it did not satisfy the requirements of s 41(1). Orders 1. The administrative review application is dismissed under the s 55(1)(a) on the ground that it is misconceived and lacking in substance. ********** 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: 14 January 2025