Watson v NSW Trustee and Guardian (No.2) [2016] NSWCATAD 19

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Watson v NSW Trustee and Guardian (No.2) [2016] NSWCATAD 19 Hearing dates: 21 September 2015 Date of orders: 29 January 2016 Decision date: 29 January 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery - Senior Member Decision: The decision under review is affirmed Catchwords: Administrative review - government information - public access - adequacy of search - 'excluded information' Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Cases Cited: Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 Miriani v Commissioner of New South Wales Police [2005] NSWADT 187 Watson v NSW Trustee and Guardian [2015] NSWCATAD 139 Category: Principal judgment Parties: Matthew Watson (Applicant) NSW Trustee and Guardian (Respondent) Representation: Solicitors: M Watson (Applicant in person) Crown Solicitor's Office (Respondent) File Number(s): 1410636

REASONS FOR DECISION 1. Mr Watson has applied to the Tribunal for review of a determination by the Respondent, the NSW Trustee and Guardian ("TAG") in regard to his application for access to government information under the Government Information (Public Access) Act 2009 ("the GIPA Act"). The information sought concerns complaints made by Mr Watson to the TAG, the Office of the Legal Services Commissioner ("OLSC") and the office of the Ombudsman regarding the TAG's conduct in administering a deceased estate. 2. The background is discussed in my decision in Watson v NSW Trustee and Guardian [2015] NSWCATAD 139 ("the earlier decision"). I also discussed the applicable legislation and relevant case law and I will not repeat that discussion here. 3. . In the earlier decision I remitted the matter for redetermination by the TAG. I made some recommendations in regard to the approach to be taken in the redetermination with the expectation that additional material that fell within the scope of Mr Watson's access application would be released. 4. The TAG conducted additional searches for information, which identified further emails as falling within the scope of the access application. This was additional information to that already identified and provided to the Tribunal. 5. Ms Jill Day, the TAG's Principal Legal Officer, completed the redetermination on 28 July 2014. She summarised her decision as follows: 1. The access application is invalid to the extent that it relates to information captured by Schedule 2(4) of the GIPA Act. 2. However, NSWTG consents to the informal release of some information captured by Schedule 2(4) ... 3. NSWTG does not consent to the release of the balance of information captured by Schedule 2(4). This information has been redacted in the copies provided. 4. The decision not to informally provide the redacted Schedule 2(4) information is discretionary and unreviewable. 5. Insofar as the application is valid, it is necessary to apply the public interest test in order to determine whether information that is captured by the application should be released to you. 6. In applying the public interest test to the documents that are the subject of a valid application (i.e. the documents that fall outside Schedule 2(4)): a. There is an overriding public interest against disclosure in respect of material which is (a) material of OLSC and in respect of which (b) it has not consented to release, by virtue of Schedule 1(6); and b. In respect of the balance of material, NSWTG is satisfied that there is a public interest in favour of disclosure. 1. Mr Watson is not satisfied with the outcome of the redetermination and at a directions hearing in the matter on 4 August 2015 he advised the Tribunal that he wishes to proceed with his application for review. Pursuant to section 65(3)(b)(i) of the Administrative Decisions Review Act 1997 ("the ADR Act") this matter now proceeds as a review of the redetermination decision. 2. Each of the parties has provided written submissions setting out the arguments it seeks to raise in the resumed matter. 3. Mr Watson has raised the issue of whether or not the TAG performed reasonable searches in response to his access application. He contends that the TAG has not conducted adequate searches for information requested. He is of the view that relevant information from the TAG that should have been captured under his GIPA access application was not and has not been captured. 4. Mr Watson referred to the fact that further searches by the TAG located additional information and raised the question as to what other information is missing, or has been withheld. He submitted that the additional information should have been captured under his initial access application. Mr Watson referred to the TAG's acknowledgment that some copies of email chains included in the confidential bundle provided to the Tribunal omitted earlier emails in the particular chain. It is my understanding that this omission has now been rectified. 5. Mr Watson also seeks access to the information that has been redacted in the material provided to him. He submits that the following foundations of the GIPA Act are relevant in this instance: * There is a general public interest in favour of the disclosure of government information. * Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. * Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. * Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. * The information is personal information of the person to whom it is to be disclosed. * Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. * There is a public interest consideration in favour of disclosure going to the accountability of TAG to ensure a robust and transparent complaint handling process. 1. c highly critical of the TAG's internal complaint handling processes and the staff involved in those processes. He also took issue with the content of some of the material that was provided to him. I note his comments in regard to his expectation of a written apology from the TAG in relation to comments that were made in the material provided to him. It is readily apparent from both the content of that material and correspondence between the parties and the Tribunal and correspondence between the Mr Watson and various officers of the TAG that there is considerable animosity between them. 2. While this situation is to be regretted, many of the issues raised by Mr Watson in regard to manner in which the TAG performs its functions and handles external complaints fall outside the Tribunal's jurisdiction under the GIPA Act.