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. Material before the Tribunal 1. In considering this application I have had regard to the following material: 1. application for administrative review of the discount application was lodged on 11 October 2018; 2. Council's submissions and attachments received on 21 January 2019 (64 pages); 3. Ms Amos' submissions and attachments filed on 4 February 2019; 4. Council's submissions in reply received 8 February 2019; and 5. directions made by the Tribunal on 20 November 2018. Decision on papers 1. This matter was referred to me to determine on the papers in accordance with directions made by Senior Member Montgomery on 20 November 2018. Before proceeding to determine the matter, I have to satisfy myself, as required by s 50(1) of the Civil and Administrative Tribunal Act 2013 (NSW), that this matter can be adequately determined in the absence of the parties by considering the written submissions and material lodged with the Tribunal. 2. When reading the submissions and materials filed by the parties it is apparent that they all relate to the issue of the Tribunal's jurisdiction to conduct an administrative review of the decision on the discount application, but that they do not address the merits of the discount application itself. This may well be the result of a misunderstanding. 3. As a result I am content to find that I can determine the jurisdictional issue on the papers: more material is needed before I could determine the merits of the discount application on the papers. If I find that the Tribunal has jurisdiction I will remit the matter for further directions. The Relevant Legislation 1. Division 1 of Part 4 of the GIPA Act is concerned with making an access application. Access application is defined in s 4(1) to mean: … an application for access to government information under Part 4 that is a valid access application under that Part. 1. Section 41 sets out how access applications are to be made, while s 42 provides: An access application can include any of the following: (a) submissions by the applicant as to any public interest considerations that the applicant thinks the agency should take into account in determining whether or not there is an overriding public interest against disclosure of the information, (b) a request for a discount on processing charges for the application (including relevant supporting information, such as evidence of hardship or special public interest), (c) any other information that the applicant thinks may be relevant. 1. After receiving an access application an agency may require the applicant to pay an advanced deposit for payment of a processing charge. In this case there is no dispute that an advanced deposit of $472.50 was paid on 24 January 2018. 2. Section 68 of the GIPA Act is concerned with advance deposit and provides: (1) An agency may by notice to an applicant require the applicant to make an advance payment of a processing charge (as an advance deposit). Note. The decision to require an advance deposit is reviewable under Part 5. (2) The period within which the application is required to be decided stops running from when the decision to require an advance deposit is made until payment of the advance deposit is received by the agency. (3) The notice requiring an advance deposit must: (a) include a statement of the processing charges for work already undertaken by the agency in dealing with the application, and (b) include a statement of the estimated processing charges for work expected to be required to be undertaken by the agency in dealing with the application, and (c) specify a date by which the advance deposit must be paid (being a date at least 20 working days after the date the notice is given), and (d) include a statement that if the advance deposit is not paid by the due date the agency may refuse to deal further with the application and that this will result in any application fee and advance deposit already paid being forfeited. (4) An agency can extend the date by which an advance deposit must be paid and is to give the applicant notice of any extension (indicating the new date by which the advance deposit must be paid). 1. When determining an access application an agency must decide whether it intends to impose a processing charge for access to the information and, if so, how those charges are calculated. Section 62 of the GIPA Act requires notice of processing charges to be given with the access decision, while s 64 is concerned with how processing charges are to be calculated. Those sections provide: 62 Notice of processing charges Notice of an agency's decision to provide access to information must state whether any processing charges will be payable for access to the information and indicate how those charges have been calculated. 64 Processing charge for dealing with access application (1) An agency may impose a charge (a processing charge) for dealing with an access application at a rate of $30 per hour for each hour of processing time for the application. Note. The decision to impose a processing charge is reviewable under Part 5. (2) The processing time for an application is the total amount of time that is necessary to be spent by any officer of the agency in: (a) dealing efficiently with the application (including consideration of the application, searching for records, consultation, decision-making and any other function exercised in connection with deciding the application), or (b) providing access in response to the application (based on the lowest reasonable estimate of the time that will need to be spent in providing that access). (3) The application fee of $30 paid by an applicant counts as a payment towards any processing charge payable by the applicant. (4) Access to government information granted in response to an access application may be made conditional on payment of any processing charge imposed for dealing with the application. (5) A processing charge must not be discounted under section 65 or 66 by more than 50% even if both sections apply. 1. Section 65 is concerned with a reduction in processing charges where the applicant suffers financial hardship. Section 66 is concerned with a reduction in processing charges where the information sought is of special benefit to the public generally. It 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. Section 80 sets out a series of decisions that are reviewable decisions under the Act. It relevantly provides: The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part: (a) a decision that an application is not a valid access application, (b) a decision to transfer an access application to another agency, as an agency-initiated transfer, (c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made), (d) a decision to provide access or to refuse to provide access to information in response to an access application, (e) a decision that government information is not held by the agency, (f) a decision that information applied for is already available to the applicant, (g) a decision to refuse to confirm or deny that information is held by the agency, (h) a decision to defer the provision of access to information in response to an access application, (i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant), (j) a decision to impose a processing charge or to require an advance deposit, (k) a decision to refuse a reduction in a processing charge, (l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment, (m) a decision to include information in a disclosure log despite an objection by an authorised objector (or a decision that an authorised objector was not entitled to object). 1. A person aggrieved by one of these decisions may seek a review by the Tribunal (s 100). Such applications are to be made within 8 weeks of the decision being given (s 101(1)), or within 4 weeks of the completion of a review by the Information Commissioner (s 101(2)). The Tribunal has power to extend the time for the making of a review application under s 101(3) when it is of the opinion that the person making the application, "has provided a reasonable excuse for the delay in making the application". 2. Section 105 is concerned with the burden of establishing a claim. It relevantly provides: (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review. 1. The Tribunal's function on review under s 63 of the Administrative Decisions Review Act 1997 (NSW) is to make the correct and preferable decisions having regard to the material before it before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. Issues requiring determination 1. The issue requiring determination is whether the Tribunal has jurisdiction to hear and determine this application. In the present case this requires a consideration of whether Ms Amos has made a valid request for a reduction of processing charges under s 66. Does the Tribunal have jurisdiction? Has a valid request for a reduction in processing charges been made? 1. Council notes that a decision to refuse a reduction in a processing charge "in respect of an access application" is a reviewable decision for the purposes of s 80(k) of the GIPA Act. Council then submits that: 13. In Manning v Bathurst Regional Council [2018] NSWCATAD 18, the Tribunal at [27] found that: "The phrase "in' respect of," which is used in s 80 of the GTPA 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])." 14. A decision on the Request cannot properly be made in "in respect of" the applicant's access application. The GIPA Act provides a clear and mandatory process by which access applications must be made, processed and decided by an agency. With respect to processing charges, and any reduction of those processing charges: a. S.42(b) provides that a request for a discount on processing charges, including relevant supporting information such as evidence of special public interest, can be included in an access application; b. S.62 provides that notice of an agency's decision to provide access to information, must state whether any processing charges will be payable, and indicate how those charges have been calculated. This requirement, clearly contemplates that an agency is required to consider, in making its decision, and giving notice of it, whether any discount is applicable under the GIPA Act; and c. S.66 provides that an applicant is entitled to a 50% reduction in a processing charge imposed by an agency, where the agency is satisfied that the information applied for is of special benefit to the public (see also s.65 for circumstances relating to financial hardship). That is, a decision in relation to a discount or reduction is required to be made at the time a processing charge is imposed, which is once an access application has been decided (Page v Southern Cross University [2017] NSWCATAP 89 at [36] and [61]). 15. The GIPA Act also provides very clearly, the circumstances in which additional, or substituted decisions can be made in respect of an access application. Those include for example, where an agency locates additional information after deciding an access application (s.58(3)), or in response to an internal review (s.84). There is no provision in the GIPA Act, and no part of the framework set out above, which contemplates or provides for an additional decision to be made on a request for a reduction in processing charges, submitted to an agency, after the final determination of an access application. 16. Here, the Request was made some five months after the subject access application was decided, and further, some three months after payment in full of the processing charge, and the release of the information subject of the Decision. The Request was well and truly outside of the mandatory framework set out above, and the timeframe for both internal and external review of the Decision. 1. It is well established that a decision concerning a reduction in processing charges cannot be made by an agency before a determination of the access application: see National Tertiary Education Union v Southern Cross University [2015] NSWCATAD 151 at [30]. In Page v Southern Cross University [2017] NSWCATAP 89 O'Connor ADCJ at [31] observed that: … a 'processing charge' is an amount that is established at the end of the process of dealing with an access application. In her decision Dr J Lucy, Senior Member (with whom O'Connor ADCJ agreed) explained, at [61] that – …s 63(4) provides that an agency may not impose a processing charge if the application is not determined within time, and s 71(2) provides that an advance deposit must be refunded if the application is not determined within time. It is implicit, from these provisions, that it is not until an agency has decided an access application that it can determine whether it is entitled or empowered to impose a processing charge and the amount of that charge. As a matter of logic, a reviewable decision to refuse a reduction in a processing charge (see GIPA Act, s 80(k)) may also only be made after an access application has been determined. 1. At the heart of Council's submissions on jurisdiction is the thesis that an application for a reduction in processing charges under s 65 (hardship) or 66 (public benefit) must be made in accordance with the 'clear and mandatory process' set out in its submission, by requesting a reduction when making an access application. While there may be many cases when it will be obvious that such a reduction will be sought from the start, an examination of the Act makes clear that the decision to impose a processing charge depends on the circumstances and can only be made after the access application has been determined. Issues concerning whether or not to seek and/or grant a reduction in a processing charge will only arise when an agency determines to impose such a charge. That event occurs at the end of the access application process. 2. The process set out in Council's submissions requires access applicants to seek reductions in processing charges in circumstances where it is not known whether or not processing charges will be imposed, and before any processing charge is calculated and known. 3. I do not accept Council's submissions in relation to the process to be followed by an access applicant when seeking a reduction of in processing charges under s 66. Section 42 provides that an access application "can" include a request for a discount on processing charges; not that a request for a discount must or shall be included in an access application. There will be cases where the issue of whether to claim a discount will not reasonably arise until after the processing charges are imposed, and the nature of the information to be released has been assessed. In this regard I accept that Ms Amos's submission that: 14. …the applicant could only make an assessment as to whether the release of the information did in fact result in some special public benefit to justify the reduction of the processing charge after the information was released by the respondent. It follows that s 66(1) contemplates that an application for a discounted processing charge for special public benefit may be made after the decision regarding the access application is made. 1. Relying on its thesis of the process to be followed in seeking a discount of processing charges Council submits, at [16] that Ms Amos sought a discount: … some five months after the subject access application was decided, and further, some three months after payment in full of the processing charge, and the release of the information subject of the Decision. The Request was well and truly outside of the mandatory framework set out above, and the timeframe for both internal and external review of the Decision. 1. It is important to note that the GIPA Act contains no provision setting out how soon after a request for a reduction in processing charges a decision on that request should be made, apart from s 66(1) which contemplates that it should be made after the access decision. Similarly, the act does not specify a time in which a request for a reduction is to be made following an agency imposing a processing charge. 2. Councils submissions do not address whether its email to Ms Amos of the 29 August 2018 stating that it would not be refunding any of the processing charges is a decision made in response to her request for a discount, and the many follow up email she had sent requesting a response. The reference in that email to s 117 of the GIPA Act is confusing. Section 127 provides: An agency is entitled to waive, reduce or refund any fee or charge payable or paid under this Act in any case that the agency thinks appropriate, subject to the regulations. 1. Ms Amos had not asked for a refund under that section. Her request had been for reduction in processing fees under s 66, albeit it would (in the circumstances) require a refund. She sought clarification of the email on the day she received it, which clarification was not forthcoming. Council has not sought to provide any clarification of its email of 29 August 2017 in submissions, but has entirely focused on its argument that Ms Amos was obliged to seek a reduction in processing charges in her access application, before the processing charges were levied. For the reasons I have already outlined I reject those submissions. 2. What is clear is that Council's email refused Ms Amos a refund. It cited s 127 rather than s 66. When she sought clarification Council remained silent. In those circumstances I think that Council's email must be taken to be a decision to refuse her a refund, representing a reduction in processing charges. 3. That being the case Ms Amos made her application for administrative review of the decision to refuse her a reduction under s 66 within the 40-day time limit provided by s 101(1). She made application for that reduction on 6 July 2018. Council's email refusing a refund is dated 29 August 2017. There is no provision in GIPA that sets out when a request for a reduction in processing charges under s 66 must be made. 4. In submissions Council suggested that no provision in the GIPA Act contemplates a decision about a reduction in processing charges being made or submitted to an agency after the final determination of the access application. As I have endeavoured to demonstrate above those submission do not withstand the weight of analysis. 5. I am satisfied that the Tribunal does have jurisdiction to hear Ms Amos's application for administrative review. Decision 1. The Tribunal makes the following orders: 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. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 15 April 2019