Amos v Central Coast Council

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.