Saggers v Environment Protection Authority [2013] NSWADT 204

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Saggers v Environment Protection Authority [2013] NSWADT 204 Hearing dates: On the papers Decision date: 16 September 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: 1. The decision under review is affirmed. 2. The application for a referral pursuant to section 112 of the Government Information (Public Access) Act 2009 is refused Catchwords: Access to government information - access application - reasonable searches - bad faith - section 112 referral Legislation Cited: Administrative Decisions Tribunal Act 1997 Government Information (Public Access) Act 2009 Freedom Of Information Act 1989 Cases Cited: Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 116 ALR 460 O'Hara v North Sydney Council [2005] NSWADT 100 Texts Cited: Statutory immunities: when is good faith honest ineptitude? M. Henry; Australian Journal of Emergency Management; 2000 pages 10 -15. Category: Principal judgment Parties: Colin Saggers (Applicant) Environment Protection Authority (Respondent) Representation: R Fox, Office of Environment and Planning (Respondent) File Number(s): 123289

reasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): This is an application for review of a determination by the Respondent, the Environment Protection Authority, in regard to an application by the Applicant, Mr Saggers, seeking access to information held by the Respondent ("the access application"). In his access application under the Government Information (Public Access) Act 2009 ("the GIPA Act") the Applicant sought: "All of the documentation in the possession of the agency that will have been created by said agency to process GIPA Informal Application No 10 commencing with the attached letter from Mr Rob Hogan dated 15 June 2012 up to and till the recept of this application." 2The Respondent received the access application on 4 September 2012. The Respondent's GIPA/Privacy Officer, Dr Racho Donef, determined the access application on 14 September 2012. 3The Informal request for documents referred to as 'GIPA Informal Application No 10' was in the following terms: Those documents held by the agency that would constitute the review made under the Protection of the Environment Operations Act (the Act) to license No 11483. The date would be some time in the years 2003/4/5. It will be the 5 year review period prior to the review commenced 18th June 2009. 4Dr Donef identified a number of documents as falling within the scope of the access application and he determined to release the documents in full. Other documents that were identified were withheld as not falling within the scope of the access application. 5The Applicant subsequently advised Dr Donef that he had not received attachments to one of the released documents. Those attachments were subsequently released. 6The withheld documents were also subsequently released notwithstanding the view that that they did not fall within the scope of the access application. 7It seems that Dr Donef had also dealt with the GIPA Informal Application No 10 and that he had identified eight documents as falling within the scope of that application. He determined that four of the documents were to be released to the Applicant. The remaining four documents were withheld from the Applicant on the basis that there was a public interest consideration against disclosure of information because disclosure of the information could reasonably be expected to prejudice a person's legitimate business, commercial, professional or financial interests and that the information included personal information about a person of a kind that required consultation: clause 4(d) of the table to section 14 of the GIPA Act and section 54(2)(a) of the GIPA Act. 8The documents requested in the GIPA Informal Application No 10 were subsequently released to the Applicant. 9In his application to the Tribunal the Applicant raised as an issue for determination as to whether a reasonable search was taken for the purposes of section 53(2) of the GIPA Act. He subsequently clarified his application in the following terms: There are two main issues for determination in this application. These are (a) Whether the Determining Officer adequately searched for all documents held that came within the terms of the applicant's Formal GIPA Request: and (b) Whether the documents that came within the terms of the applicant's request and for which the Determining Officer had refused access ... were exempt on the grounds of (i) having already been supplied during an Informal Request and (ii) were exempt on the grounds that they fell within Sect 14 Public Interest Considerations ... Related to these issues is whether the Determining officer of the EPA had acted inappropriately in the exercise of his duties on behalf of the EPA and that the Determining Officer responsible for dealing with the applicant's GIPA request failed to meet their obligations under the GIPA Act and that they failed to exercise in good faith the functions conferred and imposed on them: see s.112 GIPA Act 2009 10The parties agree that the matter should be determined on the papers without the need for a hearing. I agreed with that position. 11Pursuant to section 104 of the GIPA Act, the Information Commissioner has a right to appear and be heard in proceedings before the Tribunal. A representative of the Information Commissioner attended planning meetings but subsequently elected to not make submissions in relation to the issues to be determined.