Webb v Port Stephens Council [2019] NSWCATAD 107

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Webb v Port Stephens Council [2019] NSWCATAD 107 Hearing dates: On the papers Date of orders: 05 June 2019 Decision date: 05 June 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: R.L. Hamilton SC Decision: The Respondent's decision is affirmed Catchwords: ADMINISTRATIVE LAW- freedom of information- government information public access-advance deposit requirement-refusal to progress application-open access information- ss6,18, 64,68 and 80 Government Information (Public Access) Act 2009 (NSW) Legislation Cited: Civil & Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Government Information (Public Access) Regulation 2018 (NSW) Cases Cited: Manning v Bathurst Regional Council [2018] NSWCATAD 176 Shoebridge v Office of Environment and Heritage [2017] NSWCATAD 275 Category: Principal judgment Parties: Telina Webb (Applicant) Port Stephens Council (Respondent) Representation: Counsel:

T Webb (Applicant in person) L Marshall (Respondent) File Number(s): 2018/00231075 Publication restriction: Nil

REASONS FOR DECISION 1. By agreement between the parties this matter is to be determined on the papers pursuant to section 50 (2) and (3) of the Civil and Administrative Tribunal Act 2013. It is limited to the issue of the fees and charges/advanced deposit requirement of the respondent Council under part 4 division 5 of the Government Information (Public Access) Act 2009 (GIPA Act). 2. The applicant lodged an access application with the respondent Council under the GIPA Act. That application requested "a complete and unedited copy of the Secondary Employment Register from 2008 to date". It also requested "a complete and unedited copy of the process and associated background documentation associated with the bringing of various DA's to the Council meeting by staff and/or DA applicants" and listed 57 such applications with date references and file references. 3. Council replied stating that it considered the application would require an unreasonable and substantial diversion of the agency's resources. Council requested that the applicant reduce the number of DAs required to no more than 20 and provide a specific definition of "background information". 4. In October 2018 the applicant modified her application by reducing the list of DA's to 20 identified applications. 5. Shortly afterwards Council replied with an estimate of the time required to process this amended request. Council estimated that conducting the searches, collating information, preparing schedules containing details of all exempt and deleted documents, examining pages for decision-making, applying the public interest test to that information, and preparing and notifying the decision was estimated to take 24.25 hours at a cost of $30 per hour totalling $735. 6. Council requested payment of an advanced deposit of $367.50 (i.e 50%) in order for the application to continue to progress. The applicant did not pay the advanced deposit requested. 7. A Council officer who assesses and issues determinations on access to information requests has provided a statement setting out the manner in which she estimated the time required to process the amended application. 8. The applicant has sought a review of the decision to require an advanced deposit, and presumably the decision to refuse to deal further with the access application because of the failure to pay the advanced deposit within the time required. 9. The applicant is also sought to rely on an argument that the documents requested are "open access documents" which are required to be provided in one way at least free of charge (usually by publication on the Council's website). 10. Section 68 of the GIPA Act makes provision for an advance deposit to be paid by the applicant. 11. The section provides as follows "68 ADVANCE DEPOSIT FOR PAYMENT OF PROCESSING CHARGE (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. Section 80 GIPA Act provides relevantly for: 80 WHICH DECISIONS ARE REVIEWABLE DECISIONS The following decisions of an agency in respect of an access application are "reviewable decisions" for the purposes of this Part: …. (j) a decision to impose a processing charge or to require an advance deposit, … (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 1. The relevant decision before the Tribunal for review is the decision to require the advance deposit. The clock stops until the advance deposit is paid (s68(2) GIPA Act). The decision to refuse to deal further with the access application because the applicant has failed to pay the advance deposit is in a sense correlated to the advance deposit decision. The question is whether these decisions are the correct and preferable decisions, but the answer on the first decision would usually answer the second. 2. The provision of an estimate of charges is part of the process of deciding to require an advance deposit. It is not the same as the imposition of a charge. The decision to impose a charge is a separate reviewable decision (s64 and s80(j) GIPA Act. (Manning v Bathurst Regional Council [2018] NSWCATAD 176). 3. It is also been held that the decision to impose a processing charge is to be made at the time the agency decides to provide access to the information and not prior to that time. (See Shoebridge v Office of Environment and Heritage [2017] NSWCATAD 275 at [28]). 4. It appears to me that the time estimate for processing the access application is soundly based. It also is my view that the Council's decision to require an advance deposit of 50% of the estimated processing charge is also valid. A good deal of Council employees' time will be required to deal with the access application. 5. An advance deposit provides a form of security to the agency prior to undertaking the work involved in complying with the access application and considering the access application in detail. 6. As to the applicant's argument that the 20 DA documents requested are "open access documents" as defined by the GIPA Act it is necessary to trace the meaning of the expression through s6 and s18 of the GIPA Act through to reg 4 and schedule1 of the GIPA Regulations 2018. 7. Schedule 1 provides for development applications and associated documents to be open access documents, but goes on (cl 3(2)) to exclude certain documents. 8. Council's submission is that the issue of whether the documents are open access documents and whether the respondent should be charging for the processing of the application are not presently relevant because the only decision that has been made has been the requirement to pay a security deposit as an estimate of processing costs pending the assessment and processing of the application. 9. I agree. The question of which documents are open access documents and available free of charge is part of the agency's document review process. If a document is treated as not open access and a decision to impose a charge is made that is another decision that can be reviewed at a later point. 10. In my view the Council's decision to require the advance deposit is the correct and preferable decision.