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)

    Solicitors: Applicants in person
Central Coast Council legal officer (respondent)

File Number(s):

2017/00087703

REASONS FOR DECISION

Overview

1. This is an application for review of decisions made by the Central Coast Council (“the Council”) in response to an access application. The applicants sought access to information relevant to a dispute between them and the Council about a development application made by the applicants’ neighbours.

2. The applicants challenge the Council’s decision to provide them with access to two technical reports, relating to the development application, by way of inspection only. The Council decided not to provide them with a copy of the reports, on the basis that to provide a copy would involve an infringement of copyright.

3. The applicants also seek to challenge the sufficiency of the searches conducted by the Council for the information applied for, contending that it holds additional information that it has not identified. The Council says that the Tribunal does not have jurisdiction to examine the sufficiency of its searches and says, in any event, that its searches were adequate.

4. I have found that a provision of a copy of the reports would involve an infringement of copyright, so that the provision of inspection access only is the correct and preferable decision. I have also found that the Tribunal has jurisdiction to review an implied decision that an agency does not hold information and that the Council has not discharged its onus of persuading me that it does not hold further information. Accordingly, I have remitted this decision to the Council for reconsideration.

Background

5. In 2015, Ms Amos corresponded with the Council about alleged breaches of the development consent for a property next door to that owned by members of her family. Ms Amos contends that her family’s property was severely damaged by the neighbours’ building works.

6. Ms Amos made an access application for information contained in two reports and for email correspondence between the Council and specified third parties, relating to her family’s property and an adjoining property, pursuant to the Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”). One of the reports was prepared by structural engineering consultants and the other was prepared by an environmental and geotechnical consultancy.

7. The Council identified the two reports and an email as being responsive to the access application. It refused access to all of the information in the reports and the email.

8. Ms Amos applied to the Tribunal for review of the Council’s decision on 22 March 2017. Her father, Mr Amos, was joined to the proceedings as an applicant by consent on 30 May 2017.

9. On 27 June 2017, the Tribunal remitted the matter to the Council to make a new decision, and to undertake further consultation. The authors of the two reports objected to the release of each report by way of copy, on the grounds of copyright.

10. On 18 July 2017, the Council made a new decision. It identified further documents responsive to the access application and decided either to provide access to them in full, or to provide partial access. It decided to provide access to the reports, in redacted form, by way of inspection only, as they were subject to copyright. It relied upon s 72(2)(c) of the GIPA Act.

11. The applicants say that the application was amended by consent during the period it was remitted to the Council to include all emails between specified persons. The Council appeared to accept that the application had been validly amended.

12. On 16 January 2018, Ms Amos wrote to the Tribunal to inform it that the applicants were only pursuing the following issues:

1. copyright relevant to certain items that are the subject of the application; and

2. the sufficiency of searches undertaken by the respondent.

Sufficiency of search

13. At the hearing, Ms Amos submitted, for the applicants, that she was seeking review of an implied decision of Council that information responsive to her access application, other than that identified by the Council, was not held by it. A decision that information is not held by an agency is a “reviewable decision” within s 80(e) of the GIPA Act.

14. The Council submitted, first, that the Tribunal does not have jurisdiction to review the sufficiency of its search, or any implicit decision that it does not hold information. Secondly, it says that it conducted reasonable searches for the information sought.

Does the Tribunal have jurisdiction to review an implicit decision that information is not held?

15. The Council submits that its decisions were to provide access to some information and to deny access to other information pursuant to s 58(1)(a) and (d) of the GIPA Act. It says that those are not decisions that the Council does not hold information, pursuant to s 58(1)(b) of the GIPA Act.

16. The Council says that the only circumstances in which the sufficiency of an agency’s search gives rise to the Tribunal’s jurisdiction is where an explicit decision has been made that the agency does not hold information. It relies upon Administrative Decisions Tribunal Appeal Panel v Director-General, Department of Commerce [2008] NSWCA 140 (“the ADT Appeal Panel case”) and my decision in McClymont v Department of Family and Community Services [2017] NSWCATAD 202 at [22] to [30]. Its submissions in support of this proposition were brief.

17. The ADT Appeal Panel case concerned the question of whether the former Administrative Decisions Tribunal (“the ADT”) had jurisdiction to review the sufficiency of an agency’s search for documents under the (now repealed) Freedom of Information Act 1989 (NSW). Section 53 of the Freedom of Information Act provided that the ADT could review “determinations” made under s 24 of that Act. The ADT had found that it could review a decision that an agency did not hold a document, on the basis this was, in effect, a determination to refuse access to the document. The Court of Appeal disagreed. Beazley JA (Giles JA agreeing) said at [68]:

“The logical steps antecedent to the making of a determination, such as identifying and locating documents and/or ascertaining whether documents exist, are not part of that determination and there is no provision in s 53(1) that draws such conduct within the Tribunal’s review function. A statement that an agency does not have a document is not a ‘determination’ within the meaning of s 24(1). Accordingly, the bases for the implication of an additional right of review for the purposes of s 24, in my opinion, do not exist and Smith JM was incorrect in finding that there was such an implication.”

18. The GIPA Act greatly expanded the range of decisions which first the ADT and then this Tribunal could review, from those which had been reviewable under the Freedom of Information Act. Significantly, a decision that an agency does not hold information is a reviewable decision under the GIPA Act (GIPA Act, s 80(1)(e)). Further, s 58(1) of the GIPA Act provides for ways in which an agency may decide an access application, and this includes by “deciding that the information is not held by the agency” (s 58(1)(b)). This departs from the Freedom of Information Act, where an agency was simply required to determine whether to grant or refuse access to a document and the right of review was correspondingly limited (see ss 24(1)(a) and 53(1)).

19. There has been almost no reference to the ADT Appeal Panel case in Tribunal decisions determining applications for review of agency decisions, made under the GIPA Act, that an agency does not hold information. In McClymont v Department of Family and Community Services [2017] NSWCATAD 202 at [27], after referring to the ADT Appeal Panel case, I commented that it was arguable that the word “decision” was used in ss 58 and 80 of the GIPA Act to refer to an explicit decision, so that an applicant was not entitled to apply for review of an implicit decision that an agency does not hold information. It was not necessary to decide the issue in that case, because the applicant was able to identify an explicit decision to that effect, made by the agency.

20. The inclusion, in the GIPA Act, of a decision that an agency does not hold information, as a reviewable decision, could be seen as a legislative response to the ADT Appeal Panel case. In other words, it could be regarded as intended to overcome the effect of that decision, and to allow the Information Commissioner and the Tribunal to examine the sufficiency of an agency’s searches for information. If this is right, then it provides support for the proposition that the legislature intended s 80(1)(e), when taken with other provisions in the GIPA Act, to confer a broad review power, to review both explicit and implicit determinations of an agency.

21. One consideration in favour of this broad construction of s 80(e) is that, if the Tribunal did not have power to review an implicit decision that an agency does not hold information, that would allow an agency to evade the Tribunal’s review powers. If, for example, an agency determined to provide access to certain information (meeting the terms of an access request) and explicitly determined that it did not hold any further information, this could be characterised as a decision that the agency did not hold information; on the other hand, if the agency merely determined to provide access to certain information, and did not refer in its notice of decision to not holding any further information, this would be characterised only as a decision to provide access. This would be an arbitrary result, and one not likely to have been intended. It would also be anomalous if an agency could avoid review, by failing to respond to part of a request. So, if a person applied for three categories of information, and an agency made determinations in respect of two categories and was silent as to the third, there would be no reviewable decision in relation to the third, if an implicit decision were not reviewable.

22. There are, however, some considerations pointing towards the conclusion that the Tribunal does not have jurisdiction to review an implicit decision and may only review determinations made by an agency.

23. Section 58(1) of the GIPA Act sets out six ways in which an access application may be decided. One of these is “deciding that the information is not held by the agency” (s 58(1)(b)). There is nothing in s 58(1) which suggests that such a decision may be implicit. Rather, s 58(1)(b), with its use of the definite article, appears to contemplate that the agency has already identified the information which is responsive to the application before “deciding” that it is not held. The word “deciding” generally imports a conscious turning of one’s mind to a matter.

24. Section 58(2) provides that “[m]ore than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for.” This indicates that the various items of information (already identified by the agency) may be the subject of separate decisions (such as a decision to grant access, a decision to refuse access and a decision that information is not held). Of course, a decision not to deal with an application (s 58(1)(e)) may be made before identifying all of the information responsive to the application. However, with the exception of s 58(1)(e), the other provisions of s 58(1) appear to contemplate that the agency has turned its mind to the information in question and made a decision about it.

25. The Council relied, in support of its jurisdictional argument, upon s 58(3), which provides:

“If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.”

26. Section 58(3) is directed towards information which is in fact held by the agency, but which is not the subject of the agency’s decision and which is not identified by the agency at the time of its decision. If the agency later finds such information, the GIPA Act provides that the agency “cannot be required to make a further decision” about that additional information. As the Council submitted, this provision is in tension with the applicants’ position that such information is the subject of an implicit decision that the information is not held. An implicit decision would be subject to review, whereas s 58(3) appears to assume that the agency is not under any obligation in respect of the additional information found. Whilst not conclusive, the presence of s 58(3) supports the respondent’s jurisdictional argument.

27. Section 80 provides for the decisions which are “reviewable decisions.” These include all the decisions referred to in s 58(1). Putting the decision that an agency does not hold information to one side, the other decisions listed in s 80 all appear to be determinations rather than unconscious or implicit decisions.

28. I note also that the legislature has provided that any person may complain to the Information Commissioner about the conduct (including action or inaction) of an agency in the exercise of functions under the GIPA Act, including conduct that is alleged to constitute a contravention of that Act (see Government Information (Information Commissioner) Act 2009 (NSW), s 17). The Information Commissioner may deal with the complaint by taking appropriate measures to assist in the resolution of the complaint, or by investigating it (Government Information (Information Commissioner) Act, s 19). This provides a potential remedy for persons who consider that an agency has not conducted reasonable searches for information, contrary to its obligation in s 53(2) of the GIPA Act. A similar right of complaint (but to the Ombudsman) was conferred by the Freedom of Information Act, and this was a factor taken into account by the Court of Appeal when concluding that the ADT did not have power to review the sufficiency of an agency’s search (ADT Appeal Panel case, Beazley JA at [33]-[35] and [65], [76]; Basten JA at [106, [134]; Giles JA agreeing with both at [78]).

29. I have considered the second reading speech and explanatory note to the Government Information (Public Access) Bill 2009. They do not, in my view, provide any assistance as to whether the legislature intended an implied decision to be the subject of review by the ADT (or, later, by this Tribunal).

30. The parties did not refer me to any Appeal Panel authority on the question of whether an implicit decision of an agency that it does not hold information is reviewable. However, in my own research on the issue, I found both relevant authority at first instance, and in the Appeal Panel.

31. The Tribunal has reviewed an agency’s implicit decision that it does not hold information on many occasions (see, for example, Templeton v Office of Environment & Heritage [2016] NSWCATAD 312 and MJ v Department of Education and Communities [2014] NSWCATAD 12). In Robinson v Commissioner of Police [2014] NSWCATAP 73 at [8], the Appeal Panel made the following comments about the source of the Tribunal’s power to consider a challenge to the question of whether an agency had found all the information responsive to an access application:

“The question of whether all documents have been located becomes a reviewable decision in the following way. If the agency's answer is that it has no further documents in relation to the information sought, that is a decision 'that the information is not held by the agency' (s 58(b). A decision that government information is not held by an agency is a reviewable decision (s 80(e)). Such a decision may be said to be an implied decision in any decision responding to an access application.”

32. There is thus considerable authority to the effect that the Tribunal may review an implied decision that an agency does not hold information, including at the Appeal Panel level. The parties did not raise, in Robinson, the question of whether the Tribunal has jurisdiction to review an implied decision. Both parties assumed that it could. As far as I am aware, the power of the Tribunal to review an implied decision under the GIPA Act not been challenged in any other Tribunal proceedings. Notwithstanding this, the Appeal Panel expressed a clear view about its powers to review an implied decision in Robinson, stating at [9]:

“In 2008 the Court of Appeal ruled that FOIA, properly construed, did not give the Tribunal jurisdiction to examine inadequacy of search. The provisions now found in GIPA respond to that gap in FOIA.”

33. This must be a reference to the ADT Appeal Panel case and an expression of a view that the GIPA Act is intended to overcome that decision. I consider that I am bound to follow the Appeal Panel’s finding to the effect that an implied decision is a reviewable decision (see Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 at [196] and, to similar effect, R v Moore; Ex parte Australian Telephone and Phonogram Officers’ Association (1982) 148 CLR 600 at 616 per Stephen J).

34. There is a separate question as to whether the failure to identify further information which is responsive to an access application is an “administratively reviewable decision” within s 7 of the Administrative Decisions Review Act 1997 (NSW). This failure does not, on its face, appear to be captured by any of the (inclusive) descriptions in the definition of “decision” (see Administrative Decisions Review Act, s 6). However, this issue was not raised by the parties and, in any event, it is implicit in the Robinson decision that the Appeal Panel considered an implicit decision under the GIPA Act to be a “decision” and an “administratively reviewable decision” within ss 6, 7 and 9 of the Administrative Decisions Review Act. I have therefore proceeded on the basis that it is.

Is the implicit decision that the Council does not hold information the correct and preferable decision?

35. The applicants contended that certain Council documents contained information suggesting that the Council holds significant correspondence with a private certifier that falls within the scope of the application, but which the Council had not identified in response to the access application. They submit that the Council’s searches were not reasonable, and seek an order remitting the application to the Council to undertake further searches.

36. The Council submits that, if the Tribunal has jurisdiction to review an implicit decision that an agency does not hold information, the approach to reviewing the sufficiency of an agency’s search is as follows:

1. The Tribunal must be satisfied that there are reasonable grounds on which to believe that the requested information exists;

2. If so satisfied, the Tribunal must then determine whether the search efforts made by the agency to locate such information were reasonable in the circumstances of the case.

37. This approach has been adopted in a number of cases including Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 at [11]-[12] and Templeton v Office of Environment & Heritage [2016] NSWCATAD 312 at [21]-[22]. It was employed by the ADT when reviewing sufficiency of search under the Freedom of Information Act, prior to the ADT Appeal Panel case, and based upon a decision of the Queensland Information Commissioner in Shepherd & Department of Housing, Local Government & Planning [1994] QICmr 7 (18 April 1994); (1994) 1 QAR 464 at [19] (see, for example, Ferns v Commissioner of Corrective Services, Department of Corrective Services [2007] NSWADT 298 at [6] and the cases there cited).

38. The approach may sometimes provide a useful guide when reviewing a decision as to whether an agency holds information under the GIPA Act. However, it must be remembered first that the Tribunal’s task is to determine the correct and preferable decision at the time of the decision and secondly that it does not have jurisdiction to review the reasonableness of an agency’s search under s 53 of the GIPA Act. Accordingly, if the Tribunal is persuaded that an agency holds more information than the information it has identified, it may be that the correct and preferable decision will not be to affirm the agency’s decision that it does not hold the information, even if its searches appear to have been reasonable at the time they were conducted.

39. The burden of establishing that the implicit decision that the Council does not hold information is justified lies on the Council: GIPA Act, s 105(1). The Council submitted that the onus is on the applicant to establish that the additional information exists. That proposition is not supported by the legislative scheme, nor by authority. In Cianfrano v Director General Department of Commerce(No 2) [2006] NSWADT 195 at [69], a case dealing with the Freedom of Information Act, Judge O’Connor remarked that an applicant “must put some credible material or submissions before the Tribunal which persuades the Tribunal that an arguable case of that kind exists [that is, that there is further material].” These remarks were applied in the context of the GIPA Act in Templeton v Office of Environment & Heritage [2016] NSWCATAD 312 at [22]. These decisions suggest that the applicant has what is sometimes referred to as a “practical onus” to establish the existence, or possible existence, of further information. However, these comments should not be taken to detract from the respondent’s legal onus to justify its decision under s 105 of the GIPA Act.

40. In support of their case that there are reasonable grounds to believe that further information exists, the applicants relied, in particular, upon an email dated 30 October 2015 from the former Gosford City Council to Ms Amos in which a Council officer stated that the principal certifying authority was expected to provide to the Council information requested by it, “in the coming weeks.” Correspondence from the certifier to the Council, around this time, is information captured by the access application. Ms Amos pointed out that the Council’s evidence is that it restricted its searches for correspondence between the Council and the principal certifying authority to the period 1 January 2014 and 30 October 2015, notwithstanding that Ms Amos had requested information up to 11 July 2016 and that the email of 30 October 2015 anticipated further correspondence “in the coming weeks.” She submitted that it was unreasonable to restrict the search in that way.

41. I accept the applicants’ submissions that the searches of Council were initially inadequate, because they excluded information relating to the period 1 November 2015 to 11 July 2016. However, an officer of the Council, Ms Miller-Calvert, gave evidence that she had conducted an additional search of the Council’s Enterprise Content Management System or “ECM System” for information up to 11 July 2016, including a search using the name of the principal certifying authority. This search was conducted after receiving the applicants’ submissions in these proceedings. I accept Ms Miller-Calvert’s evidence that this search did not capture any additional information (or at least that it did not capture any additional information which she considered to be responsive to the access application).

42. The Council submits that Danielle Dickson, the former Director of Governance and Planning of Gosford City Council, who wrote the email of 30 October 2015 to Ms Amos, is no longer a Council officer. It says that, for this reason, “no further searches, for example, an enquiry of that officer, are able to be conducted.” It also submitted that records which could constitute a “request” to the principal certifying authority had already been provided to the applicants. These are all dated in June or July 2015. The submissions do not address the issue of whether the further correspondence from the principal certifying authority which was anticipated in October 2015 ever arrived, or whether the “requests” referred to in the October 2015 email were likely more recent than requests made in June or July.

43. The circumstance that a person who was a Council officer is no longer such does not, of itself, mean that further searches are not possible (or reasonable), as the Council suggests. There is no evidence that there is any reason why the Council could not have telephoned Ms Dickson to make enquiries. Ms Dickson was handling some of the applicants’ concerns at relevant times and was probably corresponding with the principal certifying authority. Further, as the applicants point out, the Council could have searched Ms Dickson’s inbox (or at least, the Council has not established that it could not have conducted such a search). There is no evidence to indicate that it does not have the capacity to do so or that it has in fact done so. As I understood the evidence, the searches of the Council’s electronic record-keeping system, the ECM System, did not capture information in staff members’ email inboxes.

44. The applicant made a subsequent access application to the Council on 2 January 2018, seeking access to correspondence between various persons including the principal certifying authority and any member of Council staff relating to the applicants’ property or the neighbouring property. As a result of that access application, the Council identified documents which were also responsive to the first access application (that is, the access application the subject of these proceedings), but which had not been identified by the Council in response to the first access application. As the applicants submit, they “would never have known about the existence of the additional information if they had not filed the second access application and received the decision prior to the hearing date.”

45. The applicants also relied upon a letter from the Council to Ms Amos, dated 20 January 2016, which states that a copy of her letter to Council will be sent to the principal certifying authority. However, the Council has produced no correspondence in which that letter was sent to the principal certifying authority, nor has it adequately explained this omission. The applicants have provided the Tribunal with a Council document headed “Councillor Request – Response,” dated 14 September 2015, which states, “the issues raised regarding the construction of the approved development [in the neighbouring property] fall with the Private Certifier and Council compliance staff have been communicating with the Private Certifier.” The document also refers to “advice received from the PCA” to certain effect. Whilst such communications could have been oral, it is likely that there would be some email correspondence between the principal certifying authority and the Council. A third Council document, dated 23 October 2015, states that the private certifier has informed it of his intention to provide a copy of a structural stability report to Council. No correspondence to this effect was identified in response to the access application.

46. The Council submitted that material it had already provided to the applicants “potentially” fell within the scope of a “request” of the principal certifying authority (as referred to in the email of 30 October 2015) and that other information provided to the applicants also “potentially” fell within the description of advice provided by the principal certifying authority and “contact” with him. I am not persuaded that this information is, in fact, the information referred to (or anticipated) in the documents relied upon by the applicants. The Council’s use of the word “potentially” indicates a degree of uncertainty on its part as well.

47. The existence of additional material identified in response to the second access application, meeting the terms of Ms Amos’s first access application, which was not identified by the Council in relation to the first application, is an indicator that the Council’s searches were not reasonable or sufficient and that it holds more information than it has identified. This conclusion is supported by the history of the matter. The first search, which was conducted on or prior to 2 September 2016, did not identify all of the information responsive to the access application. Another search, on 8 June 2017, identified further information, but still not all of the information responsive to the access application. It seems that another search was made prior to 18 July 2017 in respect of the amended application, but again failed to identify all information.

48. A search on 30 November 2017, by Ms Miller-Calvert, identified two further documents containing information which was responsive, but Ms Miller-Calvert did not consider it to be responsive because the documents were not “requests” by the Council. She did not appreciate, at the time, that the access application was not limited to “requests” and she also unduly limited the terms of the search (by date). A further search, conducted by Ms Miller-Calvert on 7 February 2018, produced no further documents which Ms Miller-Calvert considered to be responsive. However, on 16 February 2018, in response to the applicants’ second access application, the Council identified documents which it accepts are responsive to the first access application, without apparently recognising this at the time.

49. The Council has not discharged its onus of persuading me that it does not hold information in addition to that it has identified in response to Ms Amos’s access application. The information produced in response to the applicants’ second access application appears to be responsive to the first. This much appeared to be conceded by the Council at the hearing. I also consider that it is unreasonable to fail to search Ms Dickson’s inbox, or the email inboxes of other staff members dealing with the applicants’ matter, in the absence of any explanation as to why that is not possible or practicable.

50. For all of these reasons, I am not persuaded that the implicit decision that the Council does not hold any further information is the correct and preferable decision.

51. The next question is what orders are appropriate in these circumstances. In the ADT Appeal Panel case, Beazley JA commented at [71] that “the relief available in the Tribunal [that is, the ADT] does not accommodate a jurisdiction to review the sufficiency of a search,” there being “no power in the Tribunal to make an order in the form of an injunction or a mandamus, such as might be necessary to make any such jurisdiction enforceable.” The same is true of this Tribunal. Given that the Tribunal’s jurisdiction is to review the decision that an agency does not hold information, and not the sufficiency of or otherwise of its search, relief should be moulded accordingly. The Council submitted that, as the applicants had access to additional material through their second access application, the applicants now held all the relevant information which they sought. The applicants, on the other hand, sought that the matter be remitted for reconsideration.

52. The respondent has not discharged its burden of establishing that its implicit decision that it does not hold any more information is justified (GIPA Act, s 105(1)). Whilst the Council’s response to the second access application identified further information responsive to the first application, the Council has not established that the searches in response to that application located all responsive information. It appears to have been a matter of chance that they were conducted at all.

53. The Tribunal may remit a decision to an administrator “at any stage of the proceedings” for reconsideration, pursuant to s 65(1) of the Administrative Decisions Review Act. If, on remittal, the Council identifies information responsive to the access application other than that it has already identified, the Council would then be required to make a decision or decisions in respect of that information under s 58(1) of the GIPA Act, such as a decision to provide or to refuse to provide access to it. The remittal power in s 65 provides for the applicant to continue with his or her application for review in the Tribunal, after a decision is made on remittal, if he or so chooses to do so.

54. When reconsidering its decision that it does not hold information responsive to the access application, the Council should investigate why it is that documents were identified and produced in response to the second application, which were not identified and produced in response to the access application the subject of these proceedings. If this investigation indicates that there were inadequacies in its searches, and identifies what those inadequacies were, the Council should address those inadequacies in a new search. The Council should also search the inboxes of relevant officers for information, including the inbox of Danielle Dickson, if this has not already been done and if it is practicable.

Copyright issue

55. The applicants are seeking copies of the two reports and have been provided with inspection access only, in reliance upon s 72(2)(c) of the GIPA Act.

56. Section 72 of the GIPA Act provides:

72 Forms of access

(1) Access to government information in response to an access application may be provided in any of the following ways:

(a) by providing a reasonable opportunity to inspect a record containing the information,

(b) by providing a copy of a record containing the information,

(c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned),

(d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format.

(2) The agency must provide access in the way requested by the applicant unless:

(a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or

(b) to do so would be detrimental to the proper preservation of the record, or

(c) to do so would involve an infringement of copyright, or

(d) there is an overriding public interest against disclosure of the information in the way requested by the applicant.

Note. Decisions about how to provide access are reviewable under Part 5.

57. There is no dispute that each report is a “literary work” in which copyright subsists pursuant to ss 10 and 32(1) of the Copyright Act 1968 (Cth).

Open access information

58. The applicants submit that the reports are “open access information” which the Council is required to make publicly available. Section 6(1) of the GIPA Act provides that an agency must make the government information that is its open access information publicly available unless there is an overriding public interest against disclosure of the information. Section 18 of the GIPA Act provides that “open access information” includes such government information as may be prescribed by the regulations as open access information. Certain information held by local authorities associated with development applications, including structural certification documents, heritage consultant reports and tree inspection consultant reports, is prescribed as open access information (Government Information (Public Access) Regulation 2009, cl 3, Sch 1, cl 3(1)(a)).

58. The Tribunal does not have jurisdiction to determine whether an agency has complied with its obligation to make open access information publicly available. The Tribunal’s role is to review a reviewable decision of an agency in response to an access application. Thus, even if the applicants were right about the reports being open access information, for which there is no overriding public interest against disclosure, the Tribunal would have no jurisdiction to require the Council to make them publicly available.

Implied licence

60. The applicants said that the Council requested one of the reports to address complaints made by the applicant. They submitted that the reports were produced for specified environmental and planning purposes and that an implied licence for copying exists.

61. The applicants did not provide any authority in support of the proposition that there was an implied licence to copy the reports, nor did they specify who was the holder of that licence. Whilst they contended, in their written submissions, that there was an implied licence to copy the reports, they did not agitate this point at the hearing.

62. I am not persuaded that an implied licence was granted to copy the reports. Even if it had been, the authors of both reports, when consulted, refused consent to copying, relying upon copyright. Any implied licence was thereby revoked.

Fair dealing

63. The applicants also submit that the provision of the information in the reports to them would not “involve an infringement of copyright” within s 72(2)(c) of the GIPA Act. They accept that copyright subsists in the report and that copyright is the exclusive right, relevantly, to reproduce the work in a material form (Copyright Act, ss 31(a)(i) and 32(1)). They also accepted, as I understood their submissions, that reproduction of the reports would be an infringement of copyright within s 36(1) of the Copyright Act, but for the operation of s 41. Section 41 of the Copyright Act provides:

“A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if it is for the purpose of criticism or review, whether of that work or of another work, and a sufficient acknowledgement of the work is made.”

64. The applicants say that they want the reports for the purpose of criticism or review.

65. The Council submits that it is not within the scope of the Tribunal’s jurisdiction to consider any possible exemption or defence to an infringement of copyright, such as s 41. It contends that the Tribunal does not have jurisdiction to determine matters under the Copyright Act, relying upon Pycon Homes and Constructions Pty Ltd v Port Macquarie Hastings Council [2016] NSWCATAD 206 at [71] and Walker v Gosford City Council [2016] NSWCATAD 207 at [57]. The Council relies further upon a knowledge update released by the Information and Privacy Commission in July 2014 entitled “Copyright and the GIPA Act: Frequently asked questions for Councils.”

66. The opinions in the Information Commissioner’s knowledge update are not binding on the Tribunal, although the Tribunal may have regard to them. The knowledge update does not, in my view, provide clear support for the Council’s position.

67. Nor does the case law provide authority for the proposition put forward by the Council. In Pycon, at [71], Senior Member McAteer said that his finding that providing a copy of the record of information would not involve an infringement of copyright was made “for the limited purpose of determining whether there is any copyright question in so far as it effects the operation of the GIPA Act.” He continued: “This is therefore a limited finding within that provision, as the Tribunal does not have jurisdiction to determine matters under the Copyright Act 1968 (Cth).” This is, with respect, undoubtedly correct. However, it does not mean, as the respondent submits, that the Tribunal may not consider s 41 of the Copyright Act when determining whether the provision of access to the information in the way requested by the applicants “would involve an infringement of copyright” within s 72(2)(c) of the GIPA Act.

68. In Walker, Senior Member McAteer said at [57]:

“It is not the role of this Tribunal to make determinative findings in respect of the copyright legislation, due to the lack of jurisdiction of the Tribunal. However the Tribunal may make a finding as to a precondition as to whether a third party is the true holder of the copyright, in order for a party to test the matter in a Federal jurisdiction. … However the current proceedings do not seek such a finding, and as a result such a finding is not available.”

69. There is nothing in this paragraph from Walker, relied upon by the Council, which precludes the Tribunal from considering s 41 of the Copyright Act when making a finding, for the purposes of s 72(2)(c) of the GIPA Act, as to whether the provision of copy access would involve an infringement of copyright.

70. The Tribunal’s task is to determine whether to provide access to the information in the reports in the way requested by the applicants “would involve an infringement of copyright.” Under s 36(1) of the Copyright Act, copyright is infringed by a person, who, not being the owner of copyright, without licence, does or authorizes the doing of any act comprised in the copyright. However, s 36(1) is expressed to be “subject to this Act.” Section 41, reproduced above, provides for a situation where copyright is not infringed, even if a person does an act comprised in the copyright without licence to do so. This means that, if s 41 authorises the Council to copy the reports for the applicants, providing access in this way would not involve an infringement of copyright.

71. The next question, then, is whether the Council providing the applicants with a copy of a record containing the information (that is, a copy of the reports) would be a “fair dealing” with the works “for the purpose of criticism or review” within s 41 of the Copyright Act.

72. The applicants relied upon Beaumont J’s comments in De Garis v Neville Jeffress Pidler Pty Ltd (1990) 37 FCR 99 at 107 (Media Monitors/News Cutting Service case), where his Honour referred to the Macquarie Dictionary definition of “criticism” as including: “1. the act or art of analysing and judging the quality of a literary or artistic work, etc: literary criticism. 2. the act of passing judgment as to the merits of something... 4. a critical comment, article or essay; a critique.” His Honour said that, in his opinion, “‘criticism’ in the context of s 41 is used in these senses” (at 107). Ms Amos submitted orally that they wanted to analyse or judge the quality of the reports, and to pass judgment as to their merit, and therefore the proposed copying was for the purpose of criticism.

73. There is, as the Council points out, little evidence of the applicants’ purpose in wanting the copies of the reports. It is clearly connected to their ongoing dispute with their neighbours, and with the Council, about works on the neighbouring property. In their submissions, the applicants state that they “are seeking copy access to” the reports “in order to continue a dialogue with their solicitors and the respondent relevant to” issues relating to the reports, so as “to facilitate an effective resolution to the ongoing issues and continuing property damage, which is hindered by the non-disclosure of these documents.”

74. I am not satisfied, on the evidence, that the applicants’ purpose in obtaining copies of the reports is to pass judgment on their merit or analyse their quality. They already have access to the reports (without being allowed to copy them) and can therefore pass judgment on them by reading them at the Council premises. The factual material before me (Administrative Decisions Review Act, s 63(1)(a)), including in written submissions, indicates that their purpose in wanting a copy of the reports is to continue a dialogue with their solicitors and the Council about the works on the neighbouring property.

75. The Council further submits that the “fair dealing” provision in s 41 would not apply to the Council, even if it applied to the applicants, should the Council copy the material for the applicants. I accept that it is the Council’s purpose in copying the documents which is relevant, not the applicants’ purpose. If it were otherwise, an agency would have to make determinations in every case as to an applicant’s purpose for seeking access to information, and could be liable for infringing copyright if it was incorrect about that purpose. The Council’s purpose in copying the reports for the applicants, were it to do so, would be to fulfil its obligations under the GIPA Act. This is not a purpose which attracts s 41 of the Copyright Act.

76. Accordingly, I find that the Council copying the documents for the applicants would involve an infringement of copyright within s 72(2)(c) of the GIPA Act and that the Council is therefore entitled to provide access in a different way. For these reasons, the correct and preferable decision as to the form of access is that made by the Council (Administrative Decisions Review Act, s 63(1)).

Orders

77. For the reasons given above I make the following orders:

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.

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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

Decision last updated: 15 May 2018