Amos v Central Coast Council [2018] NSWCATAD 101

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Amos v Central Coast Council [2018] NSWCATAD 101 Hearing dates: 28 February 2018 Date of orders: 15 May 2018 Decision date: 15 May 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Lucy, Senior Member Decision: 1. The implied decision of the respondent that it does not hold any information is remitted to the respondent pursuant to s 65 of the Administrative Decisions Review Act 1997 for reconsideration of that decision.

2. The respondent is to affirm the decision, vary the decision or set it aside and make a new decision in substitution, in accordance with s 65(2) of the Administrative Decisions Review Act 1997, and to provide reasons, both to the applicants and the Tribunal, by 5 June 2018.

3. The applicants are to inform the Tribunal and the respondent whether they wish to proceed with the application for review of the implied decision of the respondent that it does not hold any information, or withdraw their application in respect of that decision, by 5 June 2018.

4. If the applicants decide to proceed with their application for review, they are to request the Registry to relist the matter for directions when they inform the Tribunal of their decision in accordance with Order 3 above.

5. The respondent's decision to provide access to information in the reports the subject of these proceedings by providing a reasonable opportunity to inspect a record containing the information is affirmed. Catchwords: ADMINISTRATIVE LAW – government information – forms of access – provision of inspection access only – whether provision of copy access would involve an infringement of copyright – whether Tribunal is entitled to consider fair dealing exception under copyright legislation when determining whether there would be a copyright infringement – whether it is agency's purpose or applicants' purpose which is relevant for application of fair dealing exception in context of access application ADMINISTRATIVE LAW – government information – whether the Tribunal has jurisdiction to review the sufficiency of an agency's search where the agency has not made a determination that it does not hold information – whether the Tribunal has jurisdiction to review an implied decision that agency does not hold information - whether correct approach to review of decision that information is not held is to consider first that there are reasonable grounds to believe information exists and secondly whether searches were reasonable – whether applicant bears onus of proving respondent holds additional information – where information identified in second access application which was responsive to access application the subject of these proceedings, but not identified in relation to that application. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Copyright Act 1968 (Cth) Freedom of Information Act 1989 (NSW) Government Information (Information Commissioner) Act 2009 (NSW) Government Information (Public Access) Act 2009 (NSW) Government Information (Public Access) Regulation 2009 (NSW) Cases Cited: Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce [2008] NSWCA 140 Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 Cianfrano v Director General Department of Commerce (No 2) [2006] NSWADT 195 De Garis v Neville Jeffress Pidler Pty Ltd (1990) 37 FCR 99 Ferns v Commissioner of Corrective Services, Department of Corrective Services [2007] NSWADT 298 Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 McClymont v Department of Family and Community Services [2017] NSWCATAD 202 MJ v Department of Education and Communities [2014] NSWCATAD 12 Pycon Homes and Constructions Pty Ltd v Port Macquarie Hastings Council [2016] NSWCATAD 206 R v Moore; Ex parte Australian Telephone and Phonogram Officers' Association (1982) 148 CLR 600 Robinson v Commissioner of Police [2014] NSWCATAP 73 Shepherd & Department of Housing, Local Government & Planning [1994] QICmr 7; (1994) 1 QAR 464 Templeton v Office of Environment & Heritage [2016] NSWCATAD 312 Walker v Gosford City Council [2016] NSWCATAD 207 Texts Cited: Information and Privacy Commission New South Wales, "Copyright and the GIPA Act: Frequently asked questions for Councils," Knowledge update, July 2014. Macquarie Dictionary Category: Principal judgment Parties: Jessica Amos (first applicant) Kevin Amos (second applicant) Central Coast Council (respondent) Representation: Counsel: Ms E Whitby (respondent)