Daniels v NSW State Emergency Service

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Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Daniels v NSW State Emergency Service [2024] NSWCATAD 118
Hearing dates: 28 June 2023
Date of orders: 7 May 2024
Decision date: 07 May 2024
Jurisdiction:Administrative and Equal Opportunity Division
Before: P French, Senior Member
Decision:

(1)   Insofar as the application applies for review of the Agency’s access decisions in relation to the information identified in the ‘Schedule of Emails’ it is dismissed on the basis that the Tribunal does not have jurisdiction to deal with it.

(2)   The Agency’s decision that it does not hold information that is responsive to item 2(b) of the remitted access application is affirmed.

(3)   The Agency’s decisions to refuse access to the information identified at item 1(a) to (i) of the Schedule to the Notice of Decision is affirmed.

Catchwords:

ADMINISTRATIVE REVIEW – Government Information (Public Access) Act 2009 (NSW) – access request – scope of remitted request – whether information is held by the agency – whether reasonable searches were conducted for information responsive to the access request – whether there are overriding public interest considerations that justify refusal of access to certain information – prejudice the supply to the agency of confidential information that facilitates the effective exercise of the agency’s functions – reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency – prejudice the conduct, effectiveness or integrity of an audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results – reveal an individual’s personal information – contravene and information protection principle under the Privacy and Personal Information Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW), 9, 55, 63, 65

Government Information (Public Access) Act 2009 (NSW), s 3, 4, 5, 9, 12, 13, 14, 15, 55, 57, 53, 58, 60, 80, 100, 105, Schedule 4 clause 4

Privacy and Personal Information Protection Act 1998 (NSW), s 18

State Emergency Services Act 1989 (NSW), s 7, 8

Cases Cited:

Attorney-General’s Department v Cockcroft (1986) 10 FCR 180

CLT v Secretary, Department of Education [2022] NSWCATAD 34

Collins v Department of Finance, Services, and Innovation [2018] NSWCATAD 60

Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19

Davis v Secretary, Department of Education [2022] NSWCATAD 55

Director General, Department of Education and Training v Mullett [2002] NSWADTAP 13

Fire Brigade Employees’ Union v Fire and Rescue NSW [2014] NSWCATAD 113

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Johnson v Secretary, Department of Communities and Justice [2020] NSWCATAD 23

Klaric v Commissioner for Police [2020] NSWCATAP 153

Leech v Sydney Water Corporation [2010] NSWADT 298

Luxford v Department of Education and Communities [2016] NSWCATAD 118

McKinnin v Blacktown City Council [2012] NSWADT 44

Miskelly v Transport for NSW [2017] NSWCATAD 207

MJ v Department…

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Details
Case
[2024] NSWCATAD 118
Decision Date

CaseChat Overview and Summary

The plaintiff, Mr. Daniels, applied for internal review under the Government Information (Public Access) Act 2009 (NSW) of decisions made by the defendant, the NSW State Emergency Service (SES), to refuse his requests for access to certain documents. The dispute centred on the scope of the remitted request, whether the information was held by the agency, the adequacy of searches conducted for the information, and the applicability of overriding public interest considerations that justified the refusal of access to certain information. The matter was heard in the NSW Civil and Administrative Tribunal.

The primary legal issues before the court were whether the Tribunal had jurisdiction to review the SES’s decisions, whether the SES held information responsive to Mr. Daniels’s remitted request, and whether the SES had conducted reasonable searches for the information. Additionally, the court had to determine if the SES’s refusal to provide access to certain information was justified by overriding public interest considerations, as specified in the relevant legislation.

The Tribunal found that it did not have jurisdiction to review the SES’s access decisions in relation to the information identified in the 'Schedule of Emails'. It affirmed the SES’s decision that it did not hold information responsive to item 2(b) of the remitted access application. The Tribunal also upheld the SES’s decisions to refuse access to the information identified at items 1(a) to (i) of the Schedule to the Notice of Decision, finding that the SES had conducted reasonable searches and that the overriding public interest considerations justified the refusal of access.

The Tribunal dismissed the application insofar as it sought review of the SES’s access decisions in relation to the information identified in the 'Schedule of Emails'. It affirmed the SES’s decisions regarding the information identified in items 1(a) to (i) of the Schedule to the Notice of Decision.

Orders

Orders of the court

(1) Insofar as the application applies for review of the Agency’s access decisions in relation to the information identified in the ‘Schedule of Emails’ it is dismissed on the basis that the Tribunal does not have jurisdiction to deal with it.

(2) The Agency’s decision that it does not hold information that is responsive to item 2(b) of the remitted access application is affirmed.

(3) The Agency’s decisions to refuse access to the information identified at item 1(a) to (i) of the Schedule to the Notice of Decision is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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