Burnett (on behalf of Burnett) v Secretary, Department of Communities and Justice

The matter before the Civil and Administrative Tribunal (CAT) was an appeal by the applicant, Burnett, against the decision of the Secretary, Department of Communities and Justice, to deny access to certain government information under the Government Information (Public Access) Act 2009 (NSW). The dispute centred on whether the Secretary's decision to withhold the information was lawful and reasonable, considering the public interest and the potential effects of disclosure.

The legal issues that the Tribunal needed to decide were whether the Secretary had correctly applied the statutory criteria for refusing access to government information, specifically items 1(g), 1(h), 4(c), and 4(d) of the table to section 14 of the Act. The key considerations included whether the public interest in disclosure outweighed the public interest in withholding the information, and if the applicant could demonstrate that the nominated effects reasonably expected to occur from disclosure would not materialise. Additionally, the Tribunal had to assess whether the information was confidential and protected by copyright.

In its decision, the Tribunal found that the Secretary had not adequately demonstrated that the nominated effects reasonably expected to occur from disclosure would not happen. The Tribunal noted that the applicant had provided evidence that the information was already in the public domain or could be easily obtained through other means, thereby negating the anticipated harm. The Tribunal also held that the Secretary had not sufficiently justified the withholding of the information on the grounds of confidentiality and copyright. Consequently, the Tribunal concluded that the Secretary's decision to deny access was not reasonable and set it aside.

The Tribunal ordered that the Secretary must provide the applicant with access to the information, subject to a decision on the form of access to be made by the Secretary and reviewed by the Tribunal if necessary. The Secretary was required to make this decision within 30 days and provide reasons to both the applicant and the Tribunal. The applicant was given the option to continue with the review application or withdraw it, with specific timelines provided for these decisions. Additionally, the Tribunal imposed confidentiality orders to protect the confidential evidence and documents submitted during the proceedings.