Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Manning v Bathurst Regional Council [2018] NSWCATAD 18 Hearing dates: On the papers Date of orders: 19 January 2018 Decision date: 19 January 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Lucy, Senior Member Decision: 1. That part of the application which seeks review of the decisions to deny access to the solicitor's letter of 4 May 2016 (identified in the Notice of Decision as Document 5) and the valuation report dated 7 March 2016 (identified in the Notice of Decision as Document 6) is dismissed. 2. The proceedings are listed for directions at 9.30am on 30 January 2018. Catchwords: ADMINISTRATIVE LAW – Government information – Where applicant sought review of decision to refuse access to information – Whether that information, to which access was refused, was within the scope of the applicant's access application – Whether Tribunal has jurisdiction to review decision concerning information which is outside the scope of an access application, where decision made in purported determination of access application Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Local Government Act 1993 (NSW) Cases Cited: The Northern Eruv Incorporated v Ku-Ring-Gai Council [2012] NSWLEC 249 Category: Consequential orders (other than Costs) Parties: Bhakti Manning (applicant) Bathurst Regional Council (respondent) Representation: Counsel: JR Willis (respondent) Solicitors: Applicant in person McIntosh McPhillamy & Co (Respondent) File Number(s): 2017/00247030 notice of decision 1. This decision concerns the question of whether the information sought by the applicant in these proceedings is information within the scope of her access application to the respondent agency. 2. I have found that some of the information is within that scope, whilst some is not. I have dismissed that part of the application which concerns the review of the respondent's decisions refusing access to information which was outside the scope of the applicant's access application. Background 1. The applicant sought access to information held by the respondent ("the Council") in an application made under the Government Information (Public Access) Act 2009 (NSW) ("GIPA Act"). 2. The information to which the applicant sought access was as follows: "1. Confidential Business Paper relating to Agenda Item 8 of the Bathurst Regional Council meeting of 16th March 2016 "Purchase of Land, West Bathurst" – Section discussing reasons why Council is considering the purchase of 9 McKell Street. 2. Confidential Business Paper relating to Agenda Item 3 of the Bathurst Regional Council meeting of 18th May 2016 "Purchase of Land, West Bathurst" – Section discussing reasons why Council has decided to purchase 9 McKell Street. 3. A copy of the full response from Wilkinson Murray Acoustic Consultants, excerpts of which were quoted in the letter sent to me by the General Manager on 5th February 2016. 4. A copy of the letter that the General Manager sent to Wilkinson Murray Acoustic Consultants pursuant to his letter to me dated 18th January 2016. 5. A copy of the most recent acoustic report that Council commissioned in regard to the pool pump noise at its property at 9 McKell Street, which the General Manager spoke about at Public Question time, and said had been sent to my solicitor but which he has not received." 1. The Council provided the applicant with access, in redacted form, to relevant sections of the Confidential Business Papers referred to in the first two categories of the information sought by the applicant. 2. In its determination, the Council identified a letter from its solicitor, providing legal advice sought by Council, as information responsive to the access application. This document was an annexure to one of the Confidential Business Papers. The decision-maker decided to refuse access to the solicitor's letter on the basis that it was subject to legal professional privilege (GIPA Act, s 14(1), Sch 1, cl 5). 3. The decision-maker also identified a valuation report which was annexed to one of the Confidential Business Papers as being responsive to the access application, but denied access to it on the basis that there was an overriding public interest against disclosure of the information in the document. The decision-maker relied upon cl 4(d) of the table to s 14 of the GIPA Act, which provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to prejudice any person's legitimate business, commercial, professional or financial interests. 4. The Council provided the applicant with access, in redacted form, to the information in the third category of information sought. As I understand it, she no longer presses for access to the redacted information in this category. 5. In relation to the fourth category of information, the Council submitted that it did not hold this information, as no letter was sent from the General Manager to Wilkinson Murray Acoustic Consultants. 6. The Council provided the applicant with access to a report in response to the request for access to the fifth category of information. Application for review 1. The applicant applied to the Tribunal for a review of the Council's decisions. The information to which she seeks access in these proceedings includes the solicitor's letter, the valuation report and the redacted material in the Confidential Business Papers. 2. The Council submitted that, notwithstanding that the solicitor's letter and the valuation report had been identified by the decision-maker as being responsive to the access application, they plainly did not fall within its scope. The Council also submitted that the redacted information in the Confidential Business Papers fell outside the scope of the access application. It said that this was sufficient to dispose of the review application in its entirety. 3. After the parties had filed and served their submissions, the Tribunal made directions listing the proceedings for a hearing on the papers on the issue of the scope of the access application. Consideration Solicitor's letter and valuation report 1. The applicant submits that the solicitor's letter and valuation report are attachments to the Confidential Business Papers and that, to the extent they discuss the reasons for purchase of the property, they are within the scope of the request. 2. As indicated above, the access application seeks information in the section of each of the Confidential Business Papers discussing the reasons why Council was considering, or had decided to, buy the relevant property. The solicitor's letter is not properly described as a "section" of the paper "discussing" the reasons for Council's decision; it is a stand-alone document which is annexed to the paper to support the reasons given in the paper. It does not, of itself, express or discuss the Council's reasons; rather, it was used by Council as a basis for its reasoning. 3. The valuation report is in the same category. It is an annexure, authored by a third party, which does not "discuss" Council's reasons, but rather provides facts or opinions from which Council's reasoning proceeds. 4. For these reasons, the information within the solicitor's letter and the valuation report is not captured by the access application. Redacted information in Confidential Business Papers 1. The Council submits that the redacted information in the two Confidential Business Papers is outside the scope of the access application because this information relates principally to the valuation of the property and the costs associated with its potential acquisition. It says that the access application sought access to the parts of the business papers discussing the reasons why Council was considering the purchase of, or had decided to purchase, the property. It submits that the value of the property and the purchase costs were unconnected with the reason for acquisition, and so fell outside the scope of the application. 2. The applicant submits that the costs and cost benefits to Council of purchasing a property form part of the reasons for purchase. She relies upon s 8A(1)(b) of the Local Government Act 1993 (NSW) which provides that a number of general principles apply to the exercise of functions by councils, including that Councils should carry out functions in a way that provides the best possible value for residents and ratepayers. 3. The access application sought a "section" of the Confidential Business Papers discussing the relevant reasons. Fairly construed, this is a request for all the information in the section of each Confidential Business Paper which discussed the Council's reasons (including information which was not discussing those reasons). 4. The redacted information in the two Confidential Business Papers is in a section of each paper discussing Council's reasons. It is therefore within the scope of the access application. 5. If I am wrong and the reference in the access application to a "section [of the Confidential Business Paper] discussing reasons" should be construed as referring to only that information which is itself a discussion of reasons, then I find that the redacted material is part of the discussion of the reasons for acquisition of the relevant property. I accept the respondent's submission that the Council's reasons for acquiring the property included to conduct rectification works on the property as a way of resolving a dispute between neighbours. However, the reasons for considering the purchase also took into account the purchase price. As the applicant submits, the value of the property and the purchase price formed part of the reasoning. 6. For these reasons, I find that the redacted information in the body of the Confidential Business Papers is information within the scope of the access application. Jurisdiction to review Council's decision in respect of solicitor's letter and valuation report 1. The next question is whether the Tribunal has jurisdiction to review the Council's decisions to deny access to the information in the solicitor's letter and valuation report, in circumstances where those decisions were made in respect of information which was not the subject of the applicant's access application. 2. The Tribunal has jurisdiction to review a "reviewable decision" under the GIPA Act, including the decision of an agency to refuse access to information: GIPA Act, ss 80(d), 100; Administrative Decisions Review Act 1997 (NSW), s 9; Civil and Administrative Tribunal Act 2013 (NSW), ss 28, 30. To be a "reviewable decision," the decision must be a decision "of an agency in respect of an access application" (GIPA Act, s 80; my emphasis). The term "reviewable decision" is defined to mean "a decision of an agency that is a reviewable decision under Part 5" (which includes s 80) (GIPA Act, Sch 4). A person is entitled to apply to the Tribunal for review if he or she is "aggrieved by a reviewable decision" (GIPA Act, s 100). 3. There is no doubt that the applicant is aggrieved by the decision to refuse to provide her with access to the redacted material in the valuation report and the solicitor's letter. The question is whether these are "reviewable decisions" in circumstances where she did not seek that information in her access application. 4. The phrase "in respect of," which is used in s 80 of the GIPA Act and many other statutory provisions, "may appropriately be afforded a 'wide meaning'" but the ambit of the words "in respect of" "must yield both to the particular statutory provision in which they find expression and to the context of that provision within the statute being considered" (The Northern Eruv Incorporated v Ku-Ring-Gai Council [2012] NSWLEC 249 at [36]). 5. A possible construction of s 80 is that the decisions to refuse access to the valuation report and the solicitor's letter are "reviewable decisions" because they were made in response to the access application and thus "in respect of" it. However, I consider that the statutory context of s 80 indicates that the phrase "in respect of" has a narrower meaning. 6. The GIPA Act provides for the making and review of decisions about access applications. The relevant provisions, and the right to access information, turn on the scope of an access application. Section 9(1) provides that: "A person who makes an access application for government information has a legally enforceable right 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." The "information" the subject of the "enforceable right" is the information the subject of the application. 7. Section 58(1) of the GIPA Act provides for the ways in which an agency may decide an access application. These include deciding to provide access to the information and deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information. Each of the decisions an agency may make concern the government information the subject of the access application. 8. It follows from these provisions, and the scheme of the GIPA Act more generally, that the words "in respect of" in s 80 confine "reviewable decisions" to those which concern the information to which the applicant has sought access. That is, a "reviewable decision" does not include a decision purportedly made about information falling outside the scope of the access application. The Council's decisions to refuse access to the solicitor's letter and the valuation report were not authorised by s 58(1) of the GIPA Act, because they were not decisions about the information to which the applicant had applied for access. 9. For these reasons, I find that the decisions to refuse access to the information in the solicitor's letter and in the valuation report are not "reviewable decisions" and the Tribunal does not have jurisdiction to review them. The appropriate order is to dismiss the part of the proceedings seeking review of those decisions. Orders 1. I make the following orders: 1. That part of the application which seeks review of the decisions to deny access to the solicitor's letter of 4 May 2016 (identified in the Notice of Decision as Document 5) and the valuation report dated 7 March 2016 (identified in the Notice of Decision as Document 6) is dismissed. 2. The proceedings are listed for directions at 9.30am on 30 January 2018. ******** 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: 19 January 2018