Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Commissioner of Police v Danis [2017] NSWCATAP 7 Hearing dates: 8 November 2016 Date of orders: 10 January 2017 Decision date: 10 January 2017 Jurisdiction: Appeal Panel Before: K O'Connor, AM, ADCJ, Deputy President, Appeals J McAteer, Senior Member Decision: 1. The appeal is allowed. 2. The Tribunal's orders are set aside. 3. The application for review is remitted to the Tribunal at first instance, differently constituted, for redetermination. Catchwords: GOVERNMENT INFORMATION (PUBLIC ACCESS) – Agency refusal to deal with access application – Set aside by Tribunal – Appeal – Interpretation of agency discretion to refuse to deal with access application – Whether Tribunal's further order requiring agency to disclose within scope of proceedings. Government Information (Public Access) Act 2009, ss 58, 60(1)(d); Administrative Decisions Review Act 1997, s 65. Legislation Cited: Administrative Decisions Review Act 1997 Government Information (Public Access) Act 2009 Cases Cited: Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 House v R [1936] HCA 40; (1936) 55 CLR 499 Category: Principal judgment Parties: Commissioner of Police, NSW Police Force (Appellant) Emil Danis (Respondent) Representation: Counsel: P Ginters (Appellant) Solicitors: Sparke Helmore Lawyers (Appellant) Emil Danis (Respondent in person) File Number(s): AP 16/39456 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: Danis v NSW Police Force (Ex tempore) Date of Decision: 12 July 2016 Before: S Montgomery, Senior Member File Number(s): 1510727 REASONS FOR DECISION 1. The Commissioner of Police, NSW Police Force has appealed against two decisions of the Tribunal at first instance, made under the Government Information (Public Access) Act 2009 (GIPA Act). The Tribunal set aside the agency's decision to refuse to deal with an access application, and ordered the agency to disclose the document that had been requested. 2. (For convenience in these reasons we will continue to use the first instance descriptors 'agency' and 'applicant' to refer, respectively to the appellant and the respondent.) Preliminary Matter 1. Mr Danis, the access applicant, submitted that the agency's appeal had been lodged out of time, and therefore the agency required an extension of time from the Appeal Panel for the matter to proceed. Unless an extension of time is given, the rule is that an appeal of the present kind must be lodged within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later): Civil and Administrative Tribunal Rules 2014 (NCAT Rules), cl 25(4)(c). 2. We dealt with this issue at the commencement of the hearing. The decision under appeal was given orally on 12 July 2016. The agency requested written reasons. They were issued by the Tribunal on 28 July 2016. In its notice of appeal the agency gave 1 August 2016 as the date when it 'notice of the decision was received'. The agency's solicitor, Ms Tipene, gave evidence. She explained that the reasons were received in her firm's central mail room on 1 August 2016. This was the basis for the statement in the notice of appeal. She was cross-examined by the applicant. We accepted at hearing that the date given by the agency's solicitor accurately answered the question asked by the Appeal Form, and should be treated as the date when 'the appellant was ... given reasons for the decision' for the purposes of calculation of time. 3. The applicant submitted that, if the agency's statement as to the date of receipt is accepted, then time ran out on 28 August 2016. In our view, that submission overlooks the rule as to reckoning of time, NCAT Rules, cl 6(2) which provides: (2) If a time of one day or longer is to be reckoned by reference to a given day or event, the given day or the day of the given event is not to be counted. 1. Accordingly the appeal was in time. Background 1. On 8 May 2015 the applicant applied to the agency for disclosure of three documents: two event records which were created on 15 March 2014 and held in the Computerised Operational Policy System of the Police Force (known as 'COPS'); and a DVD copy of a police interview with his son dated 12 June 2014. He explained in his application that he already seen these documents on an inspection-only in Family Court proceedings pursuant to a subpoena issued on his behalf in those proceedings. The Tribunal explained in its reasons that the applicant had wanted actual copies of the documents, and that could only be achieved by way of a GIPA Act application. The Family Court had not permitted him to make actual copies. 2. The records all derived from allegations made to the police by the applicant on 15 March 2014 that his son, then 10 years old, had been assaulted by his stepfather the previous evening, 14 March 2014. The applicant had separated from the son's mother. She was the son's principal carer. He lived at her home, which she shared with her partner, the alleged assailant. On 10 March 2014 the applicant had commenced Family Court proceedings seeking sole custody of the son. On 15 March 2014 the applicant had his son with him under access arrangements. On 18 March 2014 the Family Court issued a recovery order requiring the son to be returned to his mother's care. As he noted in his application he had seen the documents sought in the Family Court proceedings. The material before the Appeal Panel indicates that this occurred on or about 8 January 2015. 3. In its original decision (6 July 2015) the agency decided to release, in full, one COPS event record (the one ending in the numbers '764') and to release, in part, the other ('072'). 4. It refused to release the DVD, on the basis that there was, within the meaning of s 13 of the GIPA Act, an overriding public interest against disclosure of the document as there were public interest considerations against disclosure which, on balance, outweighed the public interest considerations in favour of disclosure. The reasons referred in particular to the protection of the privacy of the interviewee and other persons referred to in the DVD, and the prejudice that would result to the agency's ability to obtain confidential information that facilitates the effective exercise of the agency's functions, especially from police informants. The applicant exercised his statutory right to have the adverse determinations reviewed by the Information Commissioner. 5. The Information Commissioner recommended (5 November 2015) that the agency redetermine its part refusal of record 072 and its refusal of a copy of the DVD of the police interview. 6. When the applicant lodged his application for review with the Tribunal (on 18 November 2015) the agency had yet to take any action in relation to the Information Commissioner's recommendation. It took no further action in the months that followed. 7. At a preliminary conference on 24 May 2016, the Tribunal formally remitted the matter for reconsideration by the agency, under s 65 of the Administrative Decisions Review Act 1997 (ADR Act). Section 65 provides: 65 Power to remit matters to administrator for further consideration (1) At any stage of proceedings to determine an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator. (2) If a decision is so remitted to an administrator, the administrator may reconsider the decision and may: (a) affirm the decision, or (b) vary the decision, or (c) set aside the decision and make a new decision in substitution for the decision set aside. (3) If the administrator varies the decision: (a) the application is taken to be an application for review of the decision as varied, and (b) the person who made the application may either: (i) proceed with the application for review of the decision as varied, or (ii) withdraw the application. (4) If the administrator sets the decision aside and makes a new decision in substitution for the decision set aside: (a) the application is taken to be an application for review of the new decision, and (b) the person who made the application may either: (i) proceed with the application for review of the new decision, or (ii) withdraw the application. 1. The agency issued a 'Supplementary Decision' on 31 May 2016 (Tab 3, Annexure G of the agency's appeal bundle). The agency decided to release the second event report ('072') in full. 2. It refused to deal with the request for the DVD, in exercise of its discretion under s 60(1)(d) of the GIPA Act. Section 60(1)(d) provides that: (1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason): (d) the information is or has been the subject of a subpoena or other court order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order. 1. The agency's exercise of discretion is reviewable by the Tribunal: see s 80(e). 2. It will be seen that the Supplementary Decision differed from the original decision in its approach. On the earlier occasion, the agency had not relied on this objection. Instead it had made, as explained, a substantive decision to refuse access after weighing the public interest considerations for and against release of the DVD. 3. As it is relevant to what follows, we will set out the whole of s 58 of the GIP Act which describes the six types of final decision an agency can make in relation to an access application: 58 How applications are decided (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. Note. These decisions are reviewable under Part 5. (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired. 1. (Final decisions (b) to (f) are reviewable by the Tribunal, as are eight other types of decision that are in the nature of preliminary decisions (for example, disputes over, transfers to another agency, fees, deferrals of access and the like): s 80, GIPA Act.) 2. It will be seen that the original decision was made under s 58(1)(d). As previously noted, the agency engaged in the task of weighing considerations for and against access in the way required by ss 12-15 of the GIPA Act. In the course of that decision, the agency did say: It is understood that you have already viewed the DVD. A copy is made for the purpose of the court proceedings. Any showing of the DVD is done at court. However a copy of the DVD is not provided to the child nor the parents. The material contains sensitive information relayed during the interview and if released without restrictions could ultimately see the footage appear on social media for viewing for which we have no control. 1. It will be seen that this passage does refer to pre-conditions for the exercise of the s 60(1)(d) discretion, but the agency did not go on to deal with the application that basis. As we read its approach on that occasion, it forwent that possibility and went on and made a final substantive decision on the application. 2. On the other hand the Supplementary Decision made 31 May 2015 chose to confine itself and rely on s 60(1)(d), and did not go on to consider its attitude to the application if its reliance on s 60(1)(d) were not to prevail on review. The agency said: [The agency] refuses to deal with this part of your application. Under section 60(1)(d) of the Act, [the agency] may refuse to deal with part of an application in certain circumstances. [The agency] is refusing to deal with this part of your access application because the information requested has been the subject of a subpoena for production of documents to the Family Court of Australia [file reference given] and is available to you as a result of having been produced in compliance with the subpoena, as stated in your application dated 8 May 2015. Tribunal's Decision 1. The Tribunal proceeded with its hearing on 12 July 2016, and gave an ex tempore decision. 2. In its reasons, the Tribunal commenced by agreeing with the agency that the DVD fell within the scope of s 60(1)(d), in that it was information available to the applicant by virtue of a subpoena or similar process. 3. In overruling the agency's decision not to deal any further with the application, it gave the following reasons: [I]t is clear that the information that is the subject of the DVD is information concerning Mr Danis's son. It is also clear that Mr Danis has already viewed the information. So release of the information would not release any new information. That being the case I think that the discretion should be exercised in favour of considering the application rather than refusing it under s 60(1)(d). 1. The Tribunal then proceeded to deal with the question of whether to release the DVD to the applicant, and weighed the public interest considerations for and against access, as it saw them. It decided to order release of the DVD. (It also dealt with the applicant's dispute over the adequacy of the agency's release of material relating to record 072, now resolved.) The Appeal 1. An internal appeal to the Appeal Panel of the Tribunal may be made against a final decision of the present kind 'as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds': Civil and Administrative Tribunal Act 2013, s 80(2)(b). 2. In the notice of appeal, the agency confined its challenge to the Tribunal's decision to questions of law. In the submissions, however, it asked the Tribunal to extend the appeal, if is was satisfied that the Tribunal had erred in law, and to reconsider whether the agency's decision under s 60(1)(d) was the correct and preferable one in the circumstances. 3. If the Appeal Panel upheld the appeal on an error of law ground, but decided not to give leave to extend to the merits, the agency sought an order remitting the matter to the Tribunal differently constituted. Error of Law Grounds 1. The agency makes two basic error of law points in relation to the Tribunal's disposal of the issues relating to the DVD. 2. In reviewing a reviewable decision made by an agency, the task of the Tribunal is to make the 'correct and preferable' decision, having regard to all relevant information (Administrative Decisions Review Act 1997, s 63(1). The Tribunal re-makes the decision, as if it were the administrator: s 63(2). 3. The agency's first objection is to the adequacy of the Tribunal's reasoning in respect of the s 60(1)(d). The alleged errors are put in this collective way in the written submissions: 'identifying the wrong issue/asking the wrong question/taking into account irrelevant considerations/failing to take into account relevant considerations/failure to properly exercise the discretion'. 4. The law only permits an appeal body hearing a challenge on an error of law basis, as we are doing, to interfere with the exercise of a discretion by a first instance court or tribunal in limited circumstances. 5. The collective way the Tribunal's alleged errors is identified in the written submissions draws on the landmark statement of Dixon, Evatt and McTiernan JJ in House v R [1936] HCA 40; (1936) 55 CLR 499 at 505 as to errors that will amount to errors law, and thereby vitiate the exercise of a discretion by a trial court or tribunal. Their Honours said: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. 1. The agency's second objection is that the Tribunal's jurisdiction then miscarried when it proceeded to order release of the DVD. The agency's point is that the Supplementary Decision was now the operative decision. It did not engage with the issue of whether to grant or refuse access on substantive grounds, i.e. it did not make a decision of the kind to which s 58(1)(d) refers on this occasion, even though it had done that in its original decision of 5 July 2015. 2. The applicant submitted that the agency was not entitled as a matter of law to recast its original decision in the way that it had. He referred to Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1. There the High Court reaffirmed that an appellant is ordinarily bound by the way his or her case was conducted at trial, and new arguments cannot be raised for the first time at appeal level. The agency replied that this was not the case in this appeal. The Tribunal did have before it the s 60(d) decision, so it fell within the scope of the appeal and did not infringe the Coulton v Holcombe principle. 3. The applicant's point is a wider point, as we see it, and has to do with the prior relationship of appeal that forms part of the review jurisdiction of the Tribunal. The Tribunal at first instance is itself in an appeal relationship to the administrator. This a three-tier decision-making hierarchy (Agency-Tribunal-Appeal Panel). ('Applications for review' were once known as 'administrative appeals', the term still used in Commonwealth law.) 4. The applicant considered that the agency had by its Supplementary Decision moved the 'goalposts' of the dispute in relying on a new ground for refusal. 5. As we have explained, while the agency alluded in its original decision (5 July 2015) to the fact that the applicant had received inspection access to the DVD in the Family Court, it did not rest its case at that point. It went on to make a substantive decision to refuse access to the document. Its Supplementary Decision, in effect, took that decision off the table, for the time being. 6. In our view, the applicant has an understandable sense of grievance. However, s 65 of the ADR Act does not restrict the agency's flexibility as to the decisions it can make following remittal under s 65. Moreover, the section provides that if the review application is not resolved by the remade decision, the remade decision replaces the previous decision and becomes the reviewable decision for the purpose of the application for review: s 65(3), s 65(4). It was open to the agency to proceed in the way that it did. 7. This case illustrates, we think, the need for Tribunals at first instance to consider, when making a s 65 remittal, whether it should place limits protective of review applicants on allowing agencies to revert to a procedural or threshold objection, when that was not taken on the first occasion. This is especially so, we think, in cases like the present where circumstances relevant to the taking of the procedural or threshold objection had been acknowledged in the original reasons, and the objection not pursued. Decision to Refuse to Process Request (s 60(1)(d)) 1. Section 60(1) sets out five types of decision that an agency can make to refuse to continue to deal with a request, i.e. 60 Decision to refuse to deal with application (1) An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason): (a) dealing with the application would require an unreasonable and substantial diversion of the agency's resources, (b) the agency has already decided a previous application for the information concerned (or information that is substantially the same as that information) made by the applicant and there are no reasonable grounds for believing that the agency would make a different decision on the application, (b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989, (c) the applicant has failed to pay an advance deposit that is payable in connection with the application, Note. See section 70. (d) the information is or has been the subject of a subpoena or other order of a court for the production of documents and is available to the applicant as a result of having been produced in compliance with the subpoena or other order. 1. Section 60 is clearly designed to give agencies some flexibility in the administration and processing of access-to-information requests. Each of the grounds has at its core the sensible and efficient of deployment of agency resources. Access applicants generally are assisted if agencies are not tied down by voluminous applications (see (a)) or by having to reprocess applications that have already received attention either through previous determinations (the focus of (b) and (b1)) or by other official means (the focus of (d)). An agency may refuse to deal with a request on one of the grounds found in s 60(1)(d), and thereby avoid the need to make a final decision as to the merits of the request. Read together it can be seen that the grounds listed in s 60(1) have as an aim the avoidance of wasteful use of administrative resources (see especially (a)) or situations where the applicant has already obtained a practical result (b), (b1), and, arguably (d)). 2. Provisions like this work to the benefit of access applicants who only have a GIPA Act application as their means of getting access to government information of interest to them. They tend also work to the benefit of first-time or new applicants over repeat applicants. 3. For these reasons, it can be said that the objectives of the GIPA Act are advanced, in particular the object set out at s 3(2)(b): It is the intention of Parliament: (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 reasonable cost, access to government information. 1. The Tribunal referred to three matters in reaching the view that the correct and preferable decision was to release the DVD: (a) The information that is the subject of the DVD is information concerning the applicant's son. (b) The applicant has already viewed the information. (c) Release of the information would not release any new information. 1. The agency is correct in its submission that factors (b) and (c) are of no relevance to the exercise of the s 60(1)(d) discretion. They are factors that will always be present when s 60(1)(d) is relied upon by an agency. They are mere factual predicates to the exercise of the discretion; they are pre-conditions. They do not, of themselves, inform the exercise of the discretion. Parliament clearly gave agencies a discretion not to proceed with an access application, even though the applicant may well have seen the information, and therefor necessarily it could be said not to 'new' information when GIPA Act access application is made. 2. Factor (a) relied on by the Tribunal - that the DVD related to the applicant's son – might have some arguable relevance. A parent might be said to have a stronger stake in getting full access to material that bears on a family member, as against material of some other kind. But equally privacy considerations and respect for the wishes of the child might come into play as countervailing factors. 3. In our view, the Tribunal when reviewing decision to invoke a s 60(1) should examine the matter, at least in part, by reference to systemic considerations such as the role provisions of this kind play in promoting the efficient administration of the GIPA Act, and the avoidance of wasteful deployment of limited resources. In the case of decisions founded on s 60(1)(d), the restrictions that apply to party use of subpoenaed material might be relevant, as well agency considerations in relation to respect for court orders. This is not intended to be an exhaustive statement of the matters to be taken into account in any particular case. We accept that there may be factors of a personal kind, related to the particular application and the access applicant's personal circumstances, that may also be relevant. 4. In our view, as submitted by the agency, the Tribunal needed at least to weigh the systemic considerations that might justify the agency in not continuing to process the application. 5. In our view, the appeal must be upheld in relation to the Tribunal's reasoning as it related to the agency's decision pursuant to s 60(1)(d). The Tribunal had regard to, at least, two irrelevant considerations, and failed to have regard to considerations of a systemic kind relevant to the exercise of an administrative discretion of the present type. Tribunal's Decision to Release DVD 1. The technical position, as we have explained in replying to the applicant's argument, is that the Tribunal at this point of the process only had the first decision before it. The agency was yet to redetermine the second question, which only arose if it was wrong in relation to decision to refuse to process the application. This was the result of the way the agency chose to deal with the Tribunal's remittal for further consideration under s 65 of the ADR Act. Therefore the Tribunal exceeded its jurisdiction in going on to consider the issue of refusal to release the DVD, even though it was once the only live issue. 2. As we have explained, the agency used the opportunity given by the Tribunal's remittal for further consideration to retreat from the decision it had originally taken. It simply made a threshold decision the second time round. Merits of the s 60(1)(d) Decision: Leave Refused 1. There is an application by the agency to extend the appeal to this issue. The agency made detailed submissions as to why the agency's exercise of discretion should be upheld. The applicant replied in detail to those submissions. 2. We are disinclined to grant leave to extend the appeal to the merits. It will require us to engage, essentially, in a trial process better suited to the first instance environment of the Tribunal. Disposal of Case 1. In the event that we decided, as we have, to remit the matter for redetermination at first instance, the agency applied for an order that the matter be remitted to the Tribunal differently constituted. While ordinarily the Appeal Panel would be disinclined to make an order of this kind, we think in this case it might be better if that course is followed. 2. When it gives its directions, the Tribunal at first instance should look closely at the question of whether any additional submissions are required. Both parties have already lodged substantial submissions before the Tribunal and before the Appeal Panel going to the dispute over the s 60(1)(d) decision. In our view, there is little need for additional written submissions. (In the agency's appeal submissions, it is to be noted that the agency did not rely on, and withdrew, paras [25] to [34] of those submissions.) 3. If the Tribunal decides that the agency's decision relying on s 60(1)(d), it may need then to give further directions requiring the agency to make a new substantive determination in relation to the applicant's application. Orders 1. The appeal is allowed. 2. The Tribunal's orders are set aside. 3. The application for review is remitted to the Tribunal at first instance, differently constituted, for redetermination. ********** 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: 10 January 2017