Amos v Central Coast Council [2019] NSWCATAD 57

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Amos v Central Coast Council [2019] NSWCATAD 57 Hearing dates: On the papers Date of orders: 15 April 2019 Decision date: 15 April 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: P H Molony, Senior Member Decision: (1) The Tribunal has jurisdiction to review the Central Coast Council's decision to refuse to grant a reduction of a processing charge. (2) The application is to be listed for further directions on 23 April 2019 at 9:30am. Catchwords: Government information – Processing charge – Advance deposit – Entitlement to discount – Whether application for discount made within time – request made after access application determined - finding that request made within time. Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Cases Cited: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 National Tertiary Education Union v Southern Cross University [2015] NSWCATAD 151 Page v Southern Cross University [2017] NSWCATAP 89 Category: Procedural and other rulings Parties: Jessica Amos – applicant Central Coast Council – respondent Representation: Applicant – in person Respondent – M Domingo, Senior Solicitor File Number(s): 2018/00310820 Publication restriction: Nil

REASONS FOR DECISION

Background 1. This is an application made by Jessica Amos for administrative review of a decision of the Central Coast Council (Council) to refuse to discount processing charges. Those charges related to an earlier access application Ms Amos and her father had made seeking certain information under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act). The discount was sought on the basis that the information applied for was of special benefit to the public generally. 2. In these reasons: 1. the earlier access application is referred to as "the access application"; and 2. the current application seeking a discount of processing charges on the basis of public benefit, is referred to as "the discount application". 1. Both parties agree that paragraphs [3] – [5] of the Council's submissions dated 18 January 2019 set out relevant details about the access application – 3. On 2 January 2018, the applicant made an access application to the Council, pursuant to s.41 of the GIPA Act, seeking access to a range of information related to the properties located at 56 and 58 Kookaburra Street Kincumber NSW.… 4. The information requested in the access application included the following: a. An occupation certificate; b. All correspondence between the Council, and six specified third parties related to development issues in respect of those properties, including in respect of a public reserve adjacent to those properties; c. All complaints made by the applicant; d. All complaints made by Kevin Amos (the father of the applicant); and e. All correspondence between the Council, and the NSW Ombudsman, in relation to a maladministration complaint regarding the former Gosford City Council made by the applicant. 5. The context to the access application is as follows. The former Gosford City Council received a development application for a residential dwelling on the land located at 56 Kookaburra Street Kincumber ("DA"). The DA was determined by that Council on 26 June 2014. The applicant's father, Mr Kevin Amos is a resident of 58 Kookaburra Street Kincumber, which is adjacent to the land subject of the DA. Since approximately 2014, the applicant has raised a number of concerns with the former Gosford City Council, and the Council in relation to the DA. Those concerns were the subject of a maladministration complaint to the NSW Ombudsman by the applicant. 1. The access application was made on 2 January 2018. 2. An advanced deposit of $472.50 requested by Council was paid on 24 January 2018. 3. The access application was decided on 15 February 2018 in a Notice of Determination from Council's Access to Information Officer. That determination advised, as required by s 62, that the total processing charges payable to Council were $1,665, less: 1. $600, being the 20-hour waiver of processing charges for applications seeking personal information provided for by s 67 of the GIPA Act; 2. $30, application fee paid; and, 3. An advanced deposit of $472.50. This left a balance of processing charges owing of $562.50 to Council after payment of the application fee and the advanced deposit. 1. The total amount was paid to Council by 17 April 2018 and the applicants were then provided with access to the information determined by the access decision. It gave access to some, but not all, of the information requested. 2. As a result Ms Amos and her father sought administrative review by the Tribunal of Council's decision with respect to the access application. 3. On 6 July 2018, while the administrative review of the access application was still in progress, Ms Amos wrote to Council seeking a 50% discount of the processing charges under s 66 of the GIPA Act. That section provides: 66 Discounted processing charge—special public benefit (1) An applicant is entitled to a 50% reduction in a processing charge imposed by an agency if the agency is satisfied that the information applied for is of special benefit to the public generally. Note. The discount applies only to the processing charge, not the application fee. If a 50% reduction in processing charge applies, the application fee will pay for the first 2 hours of processing time (not just the first hour). See section 64. A decision to refuse to reduce a processing charge is reviewable under Part 5. (2) If the information applied for was not publicly available at the time the application was received but the agency makes the information publicly available either before or within 3 working days after providing access to the applicant, the applicant is entitled to a full waiver of the processing charge imposed by the agency. (3) The Information Commissioner may, for the assistance of agencies, publish guidelines about reductions in processing charges under this section. 1. The Information Commissioner has published GIPA Guideline 2 - Discounting charges: https://www.ipc.nsw.gov.au/gipa-guideline-2-discounting-charges. 2. It is agreed that following dispute resolution procedures in the Tribunal certain additional information was released by Council. This resulted in the application for administrative review of the access application being withdrawn on 15 August 2018. 3. Ms Amos sent emails to Council dated 16 July 2018, 29 July 2018, 6 August 2018 and 22 August 2018 seeking a decision on her claim for reduction under s 66. The last of these provoked a response dated 29 August 2018 from Council's solicitor which said: You would be aware that s.127 of the GIPA Act permits Council to refund fees respondent charges paid under the Act. I am instructed that the processing charges you paid on or around 17 April 2018 will not be refunded. 1. Ms Amos replied that day by email: I did not ask for a refund of the processing charge. I asked for a discount on the basis that the disclosure of information released as a result of the application is in the public interest. Please confirm if your position remained the same and I will lodge an application for external review by the Tribunal. 1. There appears to have been no response to Ms Amos' request for clarification. 2. The application for administrative review of the discount application was lodged on 11 October 2018. That application was listed for directions before the Tribunal on 20 November 2018 when the following directions were made: 1 Central Coast Council is to give to the Tribunal and all other parties the following material: evidence including statements, documents and submissions on or before 18 January 2019. 2 Jessica Amos is to give to the Tribunal and all other parties the following material: evidence including statements, documents and submissions on or before 31 January 2019. 3 Central Coast Council is to give to the Tribunal and all other parties the following material: all evidence in reply, submissions and a summary of legal arguments on or before 07 February 2019. 4 The case will be decided on the basis of the written material filed, without the need for parties to be present. 1. The parties each having filed the submissions and materials upon which they wish to rely going to the issue of the Tribunal's jurisdiction, the application has now been referred to me to determine on the papers.