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Amos v Central Coast Council

Amos v Central Coast Council

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Case Copied 15 May 2018 35 min read

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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]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NSWCATAD 101
Decision Date: 15 May 2018

CaseChat Overview and Summary

The case of Amos v Central Coast Council involves an application for review of decisions by the Central Coast Council regarding access to certain government information. The applicants sought access to specific reports held by the Council under the Government Information (Public Access) Act 2009 (NSW). The Council initially refused access, asserting that it did not hold the requested information. Later, it provided access by allowing inspection of the reports, but refused to provide copies, citing potential copyright infringement. The applicants sought judicial review of the Council’s decisions in the Land and Environment Court of New South Wales.

The primary legal issues before the Court were whether the Tribunal has jurisdiction to review the sufficiency of an agency's search for information where the agency has not explicitly determined that it does not hold the information, and whether the Tribunal can consider the fair dealing exception under copyright legislation when determining if there would be a copyright infringement in the context of an access application. A further issue was whether the agency’s or the applicants' purpose is relevant for applying the fair dealing exception in such cases.

In its decision, the Court held that the Tribunal has jurisdiction to review the sufficiency of an agency's search and the implied decision that the agency does not hold information, provided there are reasonable grounds to believe that the information exists and that the searches were reasonable. The Court found that the correct approach to reviewing the decision that information is not held involves first considering whether there are reasonable grounds to believe the information exists, and second, whether the searches were reasonable. The onus lies on the applicant to prove that the respondent holds additional information. The Court also determined that the Tribunal can consider the fair dealing exception under copyright legislation, and in this case, the Council’s purpose in denying access was relevant for applying the exception.

The Court remitted the Council’s implied decision that it does not hold any information to the Council for reconsideration. It affirmed the Council's decision to provide access to the reports by allowing inspection of the records containing the information. The applicants were required to inform the Tribunal and the Council of their intentions regarding the review of the implied decision by a specified date, and to request a relisting of the matter if they chose to proceed with the review.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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]…