FMM v Insurance and Care NSW

[2025] NSWCATAD 195

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FMM v Insurance and Care NSW [2025] NSWCATAD 195

Hearing dates:

21 May 2025

Date of orders:

05 August 2025

Decision date:

05 August 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Deane, Senior Member

Decision:

The administratively reviewable decision of the respondent that the access application is invalid is set aside and remitted for reconsideration by Insurance and Care NSW in accordance with the Government Information (Public Access) Act 2009 (NSW) and with the reasons in this decision, particularly the finding in paragraph [77].

Catchwords:

ADMINISTRATIVE LAW — Freedom of information — Access to information —whether application under Government Information (Public Access) Act 2009 is invalid because it is a request for excluded information of the agency - whether access application made to respondent or Workers Compensation Nominal Insurer

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Workers Compensation Act 1987 (NSW)

Cases Cited:

DNM v NSW Ombudsman [2019] NSWCATAP 77

FMM v icare NSW [2024] NSWCATAD 374

FMM v Insurance and Care NSW [2023] NSWCATAD 114

Insurance and Care NSW v FMM [2024] NSWCATAP 43

Texts Cited:

None cited

Category:

Principal judgment

Parties:

FMM (Applicant)
Insurance and Care NSW (Respondent)

Representation:

Solicitors:
Applicant (Self-represented)
Crown Solicitor (Respondent)

File Number(s):

2025/000501114

Publication restriction:

1. Under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication or broadcast of the name of the applicant is prohibited.

2. Under section 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the sound recording and the transcript of the closed hearing (from 10:47 am to 11:02 am on 21 May 2025) of these proceedings is prohibited.

3. Under section 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the evidence in the confidential bundle lodged by the respondent on 20 May 2025 is prohibited.

4. Under section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 (NSW) disclosure to the Applicant of the evidence in the confidential bundle lodged by the respondent on 20 May 2025 and the sound recording and the transcript of the closed hearing (from 10:47 am to 11:02 am on 21 May 2025) in these proceedings of this decision is prohibited.

REASONS FOR DECISION

Preliminaries

1. This is an application for administrative review of a decision of Insurance and Care NSW (the respondent) concerning an application made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) for access to information contained in a Cost of Claims Report (CCR).

2. The applicant sought orders in these proceedings for her name to be suppressed on the basis that there had been previous proceedings under the Privacy and Personal Information Protection Act 1998 (NSW) (the PPIP Act) in which she might be identified if her name were published in relation to these proceedings.

3. The respondent, Insurance and Care NSW (icare) did not object to the suppression of the applicant’s name. I accept that the applicant’s name has previously been suppressed in relation to proceedings under the PIPP Act and that publishing her name in these proceedings might undermine those orders. Accordingly I have made orders that disclosure of the applicant’s name is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). Consistently with previous proceedings, the applicant is known as FMM for the purposes of these proceedings.

4. On 29 January 2025, a delegate of the respondent found that the application was invalid under s 43 of the GIPA Act because the information was excluded information under Sch 2, cl 3 of the GIPA Act.

5. I have decided to set aside the decision under review and remit the matter for reconsideration by the respondent in accordance with the reasons set out below, in particular that the access application was made to Insurance and Care NSW and not to the Workers Compensation Nominal Insurer (the Nominal Insurer).

Background

6. The parties to these proceedings have past dealings in relation to the PPIP Act. Of those proceedings, two matters have been appealed to the Administrative Division of the Tribunal; FMM v Insurance and Care NSW [2023] NSWCATAD 114 (FMM1) and FMM v icare NSW [2024] NSWCATAD 374 (FMM2).

7. The respondent appealed FMM1 to the Appeal Panel in Insurance and Care NSW v FMM [2024] NSWCATAP 43 (FMM AP) and was successful on a point which is relevant to the dispute in this matter.

8. The issue in FMM2 was the disclosure by the respondent of a previous version of a CCR which included the applicant’s personal information.

9. On 9 May 2022 the respondent sent an email attaching a CCR intended for the applicant’s former employer to Mr Kyle Howes, Director of Workers Comp Savings Pty Ltd. Mr Howes was unconnected with the applicant’s former employer and he was not authorised by it to act as its agent or representative in relation to workers compensation matters.

10. A CCR containing the applicant’s and other claimants’ personal information was subsequently sent to the applicant in the circumstances described in FMM2 at [1] – [7]:

1   The applicant is seeking review of a decision relating to the conduct of the respondent in providing her with information that included her name, names of others and other personal data in a spreadsheet entitled "Cost of Claims Report” (CCR).

2   The disclosure occurred in the context of earlier Tribunal proceedings which concerned an email sent to a third party on 9 May 2022: see FMM v Nominal Insurer [2023] NSWCATAD 114 (FMM1); Insurance and Care NSW v FMM [2024] NSWCATAP 43 (FMM AP). The email sent on 9 May 2022 to an insurance broker had attached to it a spreadsheet containing personal and health information of the applicant. The recipient had opened the email but upon realising that it had been sent in error, deleted it before reading the attachment.

3   In the course of preparing for the hearing of the matter resulting in the FMM1 decision, the applicant applied for the issue of a summons on 14 November 2022 by which she sought production of, among other things, "a full unedited version of the original email that icare sent out to the incorrect employer/broker who received a Report with my personal and sensitive health information complete with attachments, inclusive of the message contained in the body of the email and also including the recipients and sender of this email".

4   By an email sent at 6.29pm on 15 November 2022, a solicitor at the NSW Crown Solicitor's Office (CSO) who had apparently accepted service of the summons on behalf of the respondent, sent the applicant an email and attachments, "to be of assistance", noting that this was not a formal response to the summons and did not fully respond to the summons which was listed for a short hearing on Monday 21 November 2022. Attached to the solicitor's email was a full unredacted copy of the CCR under cover of that email (15 November Email).

5 By email of 18 November 2022, the same solicitor wrote to the applicant stating that the solicitor had been instructed that the 15 November Email was the same as the one that had been provided to the applicant and the Tribunal as part of the documents provided under s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) in October 2022 for the FMM1 proceedings. However, the solicitor had subsequently become aware that the CCR sent under cover of the 15 November Email was not the same version. This was because it included "information unrelated" to the applicant's claim. In fact, it was a full copy of the document whereas the document that was the subject of the FMM1 proceedings had been redacted to include only information about the applicant.

6   As a result of the unredacted CCR being sent to the applicant by mistake, the solicitor requested by the email of 18 November 2022 that the applicant "delete all copies of the Cost of Claims Report and [the] email of 15 November attaching it as soon as reasonably practicable". The solicitor also asked for written confirmation that this had been done.

7   There was also apparently a telephone discussion between the solicitor and the applicant on 18 November 2022. On 21 November 2022, the applicant replied to the solicitor by email stating that she could "confirm that I have deleted the attachments". Also on 21 November 2022, there was a case conference in preparation for the hearing of the FMM1 matter before the Tribunal. A transcript of that case conference is included in the bundle of material that was before this Tribunal.

11. In FMM1, the Tribunal found that the effect of s 154C of the Workers Compensation Act 1987 was to make the Nominal Insurer the proper respondent in the proceedings (s 154C is set out below in paragraph [69] of this decision).

12. The respondent appealed to the Appeal Panel against the finding that the Nominal Insurer was the proper respondent. In FMM AP, the Appeal Panel overturned FMM1 on this point and found that Insurance and Care NSW was the proper respondent (at [12] – [14]).

13. The Appeal Panel determined that Insurance and Care NSW is a body corporate established under s 4 of the State Insurance and Care Governance Act 2015 (NSW). It is, for the purposes of any Act, a NSW government agency: s 4(2). The Workers Compensation Nominal Insurer is also a ‘public sector agency’ and is a separate legal entity from Insurance and Care NSW (at [15]).

The GIPA proceedings

14. On 17 December 2024, the applicant lodged an application for access (under the GIPA Act) addressed to “icare NSW (Insurance and Care NSW).” In the application, the applicant sought access to the

Cost of Claims report relating to my worker’s compensation claim for the period of June 2024 – December 2024 containing the information relating to myself.

15. At the hearing, the applicant clarified that this CCR related to a later time period than the CCR which had been sent to her previously.

16. The respondent acknowledged receipt of the applicant’s “valid access application” by letter dated 7 January 2025 under the Insurance and Care NSW letterhead.

The GIPA decision

17. By letter dated 29 January 2025, also under the Insurance and Care NSW letterhead, the respondent advised the applicant:

Unfortunately, your application is invalid because you are requesting access to information that is excluded under the GIPA Act.

18. After identifying the workers compensation claims relevant to the application, the delegate of the respondent found:

As the employer … is not a government agency or is self-insured, the insurer for this employer is the Workers Compensation Nominal Insurer.

Under Schedule 2 of the GIPA Act, information on the management of specific claims by the Workers Compensation Nominal Insurer is specified as excluded information. Under section 43 of the GIPA Act, an application for excluded information is considered invalid.

Excluded information

icare workers insurance acts on behalf of the Nominal Insurer, a legal entity which appoints Scheme agents to manage workers compensation claims. All records and other documents made and kept, or received and kept, by the Scheme agents are created in the exercise of functions on behalf of the Nominal Insurer and become the property of the Nominal Insurer, under 154K(1) of the Workers Compensation Act 1987.

Information held by the Nominal Insurer in relation to the management of specific claims is considered to be excluded information of particular agencies pursuant to Schedule 2, clause 3 of the GIPA Act. In particular, Schedule 2, clause 3 of the GIPA Act states:

Competitive and market sensitive information

The Workers Compensation Nominal Insurer established under the Workers Compensation Act 1987 – functions relating to the issuing of policies of insurance to employers and the calculation of premiums (but only in relation to individual employers) the management of specific claims and to asset and funds management and investment.

…

Application to the Tribunal for administrative review

19. On 27 February 2025, within 40 working days after notice of the GIPA decision was given, the applicant lodged an application for administrative review of the Respondent’s decision with the Tribunal.

20. In the application, the applicant noted that under s 243(1)(a) of the Workplace Injury Management and Workers Compensation Act 1998 icare could disclose information to an injured worker with their consent.

21. The applicant submitted that icare had first accepted her application as valid, and then misapplied Sch 2, cl 3 of the GIPA Act in deciding her application was invalid.

Jurisdiction

22. The respondent’s decision that the application was not a valid access application is a reviewable decision (s 80(a) GIPA Act). Section 100(1) of the GIPA Act gives a person aggrieved by a reviewable decision a right to apply to NCAT for an administrative review of that decision under the Administrative Decisions Review Act 1997 (NSW) (ADR Act).

23. An application for administrative review of “an administratively reviewable decision” may only be made by an interested person (s 55 ADR Act). An administratively reviewable decision is “a decision of an administrator over which the Tribunal has administrative review jurisdiction” (s 7 ADR Act). The Tribunal has administrative review jurisdiction over a decision of an administrator “if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision” (s 9 ADR Act). An “administrator” is the person or body that makes the decision under enabling legislation (s 8 ADR Act).

24. Accordingly, the Tribunal has jurisdiction to hear and determine this application.

Legislative framework

25. Part 4, Division 1 of the GIPA Act sets out how an access application is made. Section 41 stipulates the formal requirements that an access application must comply with in order to be valid:

41 How to make an access application

(1) An application or other request for government information is not a valid access application unless it complies with the following requirements (the formal requirements) for access applications—

(a) it must be in writing sent by post to or lodged at an office of the agency concerned or made in the manner approved by the agency under subsection (2),

(b) it must clearly indicate that it is an access application made under this Act,

(c) it must be accompanied by a fee of $30,

(d) it must state the name of the applicant and a postal or email address as the address for correspondence in connection with the application,

(e) it must include such information as is reasonably necessary to enable the government information applied for to be identified.

Note. See section 51A concerning the effect of a waiver, reduction or refund of the fee for an access application. See also section 52 (3) concerning assistance to be afforded by an agency to an access applicant.

(1A) If the applicant has applied at any time to another agency for substantially the same information, an application must also include the name of the other agency. However, failure to comply with this subsection does not affect the validity of an application.

(2) An agency may approve additional facilities for the making of an access application or the payment of an application fee.

(3) An access application is not considered to have been received by an agency until it is actually received by the agency.

26. Part 4, Division 3 of the GIPA Act steps through the requirements on agencies in dealing with access applications. Section 51 of the GIPA Act requires the receiving agency to make an initial decision as to the validity of the application:

51 Initial decision as to validity of application

(1) When an agency receives an application for access to government information that it appears is intended to be an access application, the agency is to decide whether the application is a valid access application and is to notify its decision to the applicant by either—

(a) acknowledging receipt of the application as a valid access application, or

(b) notifying the applicant that the application is not a valid access application.

Note.

An application is not a valid access application if it is an application for excluded information of the agency or does not comply with the formal requirements for access applications.

27. Initially, on 7 January 2025 the respondent acknowledged receipt of the applicant’s valid access application. Subsequently, on 29 January 2025 the respondent determined that the application was invalid.

28. In finding the applicant’s access application invalid, the respondent relied on s 43 GIPA Act which stipulates:

43 Access application cannot be made for excluded information

(1) An access application cannot be made to an agency for access to excluded information of the agency.

Note. Information is excluded information of an agency if it relates to any function specified in Schedule 2 in relation to the agency.

(2) An application for government information is not a valid access application to the extent that the application is made in contravention of this section.

29. Schedule 1 to the GIPA Act provides for a conclusive presumption of an overriding public interest against the disclosure of excluded information:

6 Excluded information

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of.

(2) Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information.

(3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5.

30. Schedule 2 to the GIPA Act specifies what is excluded information of particular agencies. The note to Schedule 2 states:

Note.

Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is excluded information of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency.

31. The exclusion provision on which the respondent relied is set out in Sch 2, cl 3:

3 Competitive and market sensitive information

…

The Workers Compensation Nominal Insurer established under the Workers Compensation Act 1987—functions relating to the issuing of policies of insurance to employers and the calculation of premiums (but only in relation to individual employers), the management of specific claims and to asset and funds management and investment.

32. When Sch 2, cl 3 is read with the note to Schedule 2, the relevant agency in Sch 2, cl 3 is the Nominal Insurer. Reading s 43 of the GIPA Act with the note to Sch 2 and Sch 2, cl 3, an access application is invalid under s 43 if an application is made to an agency for access to excluded information; ie the access application would need to have been made to the Nominal Insurer to be deemed invalid under s 43.

The respondent’s submissions and evidence

33. The respondent lodged an affidavit from Peter Meighan dated 31 March 2025, who at that time was head of Underwriting Operations. In the affidavit, Mr Meighan set out:

5 Under cl 47 of the Workers Compensation Regulation 2016 icare (on behalf of the Nominal Insurer) is required to provide an employer with a certificate specifying certain particulars relating to costs of claims if the employer requires it.

6   Employers who have workers compensation premiums over $25,000 in the Nominal Insurer Scheme are able to receive (on request) a Cost of Claims Report distributed automatically by icare each month. These employers include those covered by icare's loss prevention and recovery product, for which icare considers their claims experience over the past four years for the purposes of determining premiums. The purpose of the cost of claims report is to assist employers with understanding their claims costs and frequency under the NSW workers compensation scheme.

7   A Cost of Claims report is an excel spreadsheet which collates data relating to claims payments made under the employer’s policy. Because the spreadsheet is organised for each employer, each report commonly collates data relating to multiple workers compensation claims in a single document. The data includes the nature of each injury, claims payments made under the policy, any recovery from third parties and reporting dates. Therefore Costs of Claims reports commonly include the personal information of multiple workers in a single document.

8   From May 2022 onwards (and thus for the period relevant to the access application) the Costs of Claims reports do not include the name or date of birth of each worker.

9   Cost of Claims reporting is also undertaken for the following purposes;

(a) to assist employers in managing their claims portfolio;

(b) to allow employers to forecast pending premium costs, taking into account premium impacting claims

(c) for general claims management purposes and

(d) to assist with developing work, health and safety programmes to avoid similar injuries in the future. …

11    Costs of claims reports may also be utilised by icare's underwriting team in the calculation of premiums.

34. Mr Meighan expanded on his affidavit by telephone at the Tribunal’s hearing in response to questions from the applicant and the respondent in reply.

35. Mr Meighan explained that the CCR contained information relating to the nature of the injury and the mechanism of the injury, but not other personal information like names or dates of birth. The intent of the report was for use by clients for managing claims and return to work purposes, but he could not answer how each individual broker might use the report. He confirmed that the CCRs were not solely used for the purpose of calculating premiums, they were also used for return to work or to manage the injured worker and various other reasons.

36. Mr Meighan clarified that the applicant’s employer was not presently covered by the nominal insurance scheme but had been in the past, having moved from the nominal insurance scheme to state cover around 2020. If a person’s information was contained in the CCR, their claim was made under the nominal insurance scheme and the Nominal Insurer would still be responsible for their claim.

37. Following Mr Meighan’s evidence, the Tribunal went into closed session to discuss the confidential documents. However it has not been necessary to include information from that session for the purposes of these reasons. The Tribunal returned to open session.

38. In their written submissions, the respondent set out its understanding of the relevant issues as follows:

The question for the Tribunal is whether the access application was made to the Workers Compensation Nominal Insurer for information that relates to the functions of issuing of policies of insurance to employers and the calculation of premiums or the management of specific claims.

39. The respondent submitted that the words “in respect of” (which would be treated as synonymous to the term “relate to”) have a broad meaning. The information sought by the access application need not be central to the premium calculation functions of the Nominal Insurer but includes information which is related to that function, including because it is the product of a calculation or used to report or predict premium calculations.

40. The respondent submitted that icare acts for the Nominal Insurer which is established under s 154A of the Workers Compensation Act 1987 (NSW). All workers compensation underwriting functions of the Nominal Insurer are performed by icare staff. Icare exercises these functions in accordance with s 154C of the Workers Compensation Act:

22. Section 154C(1) … deems that the Nominal Insurer itself is holding information when icare holds that information on behalf of the Nominal Insurer, and that the Nominal Insurer received the access application... Section 53(1) of the GIPA Act obliges the release of information that is “held by the agency” which receives an access application. Thus, the agency which received the application is deemed to be the Nominal Insurer. Notwithstanding that the access application is in terms addressed to icare, it was made to the Nominal Insurer for the purposes of Sch 2 to the GIPA Act.

[in a footnote, the respondent set out: if this is incorrect for any reason, Sch 1, cl 6 of the GIPA Act … would deem the information to be conclusively subject to a presumption against disclosure. In those circumstances the application would be valid, but no information would be disclosed.]

23.    The access application seeks any costs of claims reports … which contain information which relates to functions of the issuing of policies, calculation of premiums of specific employers, and management of specific claims. That is because the costs of claims reports are used: (a) by the Nominal Insurer to calculate premiums … (b) by employers to forecast premium costs; and (c) by both the Nominal Insurer and employers (and their brokers) to manage specific claims under policies issued to each employer.

24. The information sought by the access application directly relates to the functions listed in Sch 2, cl 3 of the GIPA Act. Therefore it seeks excluded information, and the access application is invalid.

41. In response to the applicant’s submissions, the respondent further submitted:

1. the Cost of Claims report remained excluded information regardless of whether the applicant was seeking her own personal information;

2. the term “relates to” in Sch 2 should be read broadly and the information sought in fact directly related to the excluded functions;

3. the access application had been properly treated as being made to the Nominal Insurer. The respondent held its position that all information sought by the access application and “held” for the purposes of the GIPA Act was deemed to be held by the Nominal Insurer under s 154C of the Workers Compensation Act 1987.

18. …Therefore, whilst the access application was addressed to insurance and Care NSW and has been processed by staff employed by Insurance and Care NSW, it must be deemed to have been made to the Nominal Insurer. Any step that Insurance and Care NSW takes in relation to the access application - including receiving it and holding or disclosing any information - is taken to be done by the Nominal Insurer. Therefore, the access application is taken to have been made to the Nominal Insurer.

19   If the access application was in fact made to Insurance and Care NSW, and not to the Nominal Insurer, the access application would be valid, but the information sought would be subject to a conclusive overriding presumption against disclosure. Therefore even if this submission is not accepted, no further information can be released.

42. In their oral submissions, the respondent summarised the written submissions and noted:

1. If the access application was made to the Nominal Insurer and it seeks information relating to the functions relating to the issuing of policies of insurance or the calculation of premiums, then the access application would be invalid under s 43.

2. If the access application was made to icare but it seeks information relating to the issuing of policies of insurance for employers and the management of claims then it was a valid application, but the information was subject to a conclusive presumption against disclosure. This was a different legal pathway, but the outcome, in practical terms, would be the same, which would be that no information was released.

43. The access application had not been processed because it was determined to be invalid so no public interest factors against disclosure under s 14 of the GIPA Act had been, or should be, considered.

44. In relation to whether the access application was made to icare or the Nominal Insurer, the respondent accepted that the access application itself was addressed to icare NSW (Insurance and Care NSW) and named icare, not the Nominal Insurer. The respondent further accepted that icare staff had processed and communicated the decision. Those two aspects would, in other circumstances, suggest that the access application was made to icare.

45. However, s 154C of the Workers Compensation Act provides that icare acts for the Nominal Insurer and anything done or omitted to be done by icare on behalf of or in the name of the Nominal Insurer is taken to have been done or omitted by the Nominal Insurer. Subsection 154C(2) provides that icare has and may exercise all the functions of the Nominal Insurer and (3) provides that a liability incurred by icare when acting for the Nominal Insurer is a liability of the Nominal Insurer and not a liability of Icare NSW.

46. By application of s 154C of the Workers Compensation Act all information that is held which could possibly respond to the access application was held by the Nominal Insurer. Similarly when the respondent provided the confidential bundle to the Tribunal, the instructions to do so were taken to have come from the Nominal Insurer.

47. Accordingly, in the respondent’s submission, the receipt and processing of the access application must be done by the Nominal Insurer. It was not icare’s information; it was the Nominal Insurer’s information. It might be processed by staff that were employed by icare and might have been received in a letter that was addressed to icare, but it could not possibly be processed by icare itself. If icare processed the access application and ignored the Nominal Insurer, there must then be no information produced because icare did not hold any information that it was not holding as the Nominal Insurer. If every aspect of the GIPA Act processing and holding of information was that of the Nominal Insurer, it did not make sense for the access application to have been addressed to a different agency.

48. The respondent sought to distinguish the findings of the Appeal Panel in FMM AP by noting that the Appeal Panel had considered a privacy matter. The Appeal Panel had accepted that any liabilities arising under s 154C would be deemed to be those of the Nominal Insurer but the application for internal review and the privacy proceedings was addressed to icare and sought review of conduct of icare so that was a question of construction of the application for internal review.

49. The position under the PPIP Act was distinguishable from the position under the GIPA Act because the former dealt with the review of conduct but the latter dealt with the holding of information which could only be information held by the Nominal Insurer. Secondly there was a factual distinction. In the privacy proceedings, the review focussed on the construction of the application for internal review which was the review of conduct of icare. However here, the GIPA Act access application could only be sensibly read as an access for information held by the Nominal Insurer.

Applicant’s submissions and evidence

50. The applicant provided written submissions dated 22 April 2025, 28 April 2025 9 May 2025 and 13 May 2025. She also provided an affidavit dated 17 April 2025 and made oral submissions at the Tribunal’s hearing.

51. In her affidavit, the applicant set out the history of the access application and confirmed that she was only seeking access to her own personal information in relation to her workers compensation claim and was not seeking information about other workers, employers or premium calculations.

52. The applicant challenged the statement in the access decision that her previous employer was not a government agency or was self-insured, and submitted that the employer was a local government agency and was not self-insured.

53. At the hearing, there was further discussion on this point with Mr Meighan. The clarification was that the employer was previously covered by the Nominal Insurer and the CCR held the information of persons who were covered by claims under the nominal insurance scheme.

54. The applicant submitted:

1. the information sought was not “excluded information” within the meaning of schedule 2. The respondent had also not demonstrated why redaction of any incidental material was not feasible under s 72 of the GIPA Act;

2. even if it were, it constitutes the applicant's own personal information, which attracts a strong public interest in favour of disclosure under the GIPA Act under cl 1 of the Table to s 14 of the GIPA Act and s 14 of the PPIP Act;

3. the respondent's interpretation of schedule 2 was overly broad and inconsistent with the intent of the GIPA Act. The applicant was not seeking underwriting or pricing information about an employer's premium. She was requesting data about her own claim, for a defined period. The purpose of schedule 2 was to exclude categories of information that were market sensitive or commercial in confidence, typically where disclosure could impact insurer competition or public revenue. That was not the case here. The applicant was not an employer. She was a claimant seeking information about her own experience under a statutory scheme. The term “relates to” in schedule 2 must be interpreted narrowly where it derogates from a citizen's right to access government held personal information. The broad reading urged by the respondent would have the effect of rendering all claims data categorically exempt which was inconsistent with the objects of the GIPA Act.

55. The respondent’s position that the access application was made to the Nominal Insurer as a result of the deeming provision of s 154C of the Workers Compensation Act was immaterial. The applicant had lodged a valid access application to icare under Part 4 of the GIPA Act. Under the GIPA Act, an access application was validly made to the agency which received it and held or controlled the relevant information at the time of the request (ss 41, 43 and 45). Icare held the document and was the appropriate decision making agency. The effect of s 154C was not to alter the obligations under the GIPA Act, but rather to deem certain actions of icare as being done on behalf of the Nominal Insurer. The agency’s obligations to process valid access requests, consider redaction, and weigh public interest remained unaffected.

56. To accept the respondent’s argument “would lead to a situation where the Nominal Insurer – a legal construct without public contact, administrative officers, or GIPA access infrastructure – becomes a black hole for information, denying applicants access to information that was otherwise managed and held by icare.”

57. In her submissions of 9 May 2025 the applicant set out:

3. Contradictions in Respondent’s Disclosure Position

10 The respondent contends that the applicants access application is invalid because it seeks ”excluded information” under Schedule 2, clause 3 of the GIPA Act, specifically the Cost of Claims Report.

11   However, the same cost of claims report - containing 1,002 individual claims - was previously disclosed to the applicant by the respondent, all be it inadvertently. This spreadsheet included two entries relating to the applicant and approximately 1,000 entries relating to other injured workers.

12   In previous hearings, (listed below) icare asserts that providing the full report to the applicant was not a disclosure, on the basis that it contained her own information. This position is legally untenable. The fact that the report included the applicants to claims does not negate the fact that it also included highly sensitive personal and potentially health related information of over,000 other individuals.

13 The respondent cannot simultaneously maintain that (a) the document is so sensitive that it cannot be released under GIPA due to Schedule 2 exclusions; and (b) the same document was appropriately released in full, without redaction, to the applicant.

…

15   Further the inadvertent disclosure proves that: (a) the cost of claims report is structured in a manner (ie row by row) that makes redaction not only feasible but straightforward; and (b) the applicants 2 rows of information are clearly distinguishable and easily extractable from the larger report.

16   The respondent also claims that the reports no longer contain names or dates of birth, which further undercuts any argument that redaction is impractical or that personal privacy of third parties cannot be protected.

58. Regarding Mr Meighan’s affidavit, the applicant submitted that the affidavit contained generalised assertions that failed adequately to address the applicant’s specific right of access.

59. In her additional oral submissions, the applicant contended that the Nominal Insurer was a separate agency to the Treasury Managed Fund, which was the scheme under which she thought her employer was insured at the time which was covered by the CCR which was requested in the access application. Accordingly the application should have been considered valid. The Treasury Managed Fund was supported by taxpayers not premiums therefore the information in the CCR was not related to the calculation of premiums. [it is appropriate to note here that, at the hearing Mr Meighan had clarified that the applicant’s employer had been previously covered by the Nominal Insurance Scheme and the details of the claimants listed in the CCR were for claimants covered by that scheme. Accordingly the fact that the applicant’s employer might now be covered by a different scheme did not change the scheme under which the applicant’s claim had been covered at the time that it was made, which was the Nominal Insurance Scheme.]

60. The applicant contended that the information that she sought was her own personal and health and financial information. She was not interest in other people’s information.

Has the respondent established that the access decision is justified?

61. In the respondent’s submissions, the question stated was whether “the access application was made to the Workers Compensation Nominal Insurer for information that relates to the functions… [under Sch 2 cl 3].”

62. However this construction conflates two different questions. Having considered the parties’ submissions, the issues distil down to, firstly, which agency was actually the recipient of the access application; that is, did the applicant make her application to icare or to the Nominal Insurer?

63. If it was Insurance and Care NSW, as argued by the applicant, the application would not be rendered invalid by s 43 and the decision that the application was invalid would be incorrect and the matter would be remitted to icare on that basis. It would be unnecessary and premature for me to pre-empt any further decisions which might be made on access by considering whether the information sought was in fact excluded information in those circumstances because the respondent (Insurance and Care NSW) would then be required to make a decision on access after considering all relevant factors.

64. If the Nominal Insurer were taken to have received the access application as contended by the respondent, I would then be required to consider whether the CCR fell within the scope of Sch 2 cl 3 such that s43 would apply.

To which agency was the access application made?

65. The respondent sought to rely on the applicant’s submission that the agency that receives the access application and holds or controls the relevant information at the time of the request was the agency that received it (ss 41, 43 and 45 GIPA Act) and so argued that the receiving agency, by application of s154C of the Workers Compensation Act must be the Nominal Insurer. However this misrepresents the intent of the applicant’s submission; the applicant is submitting that, as icare received the access application and either holds or controls the relevant information, icare was the agency to whom the access application had been addressed.

65. None of the sections of the GIPA Act referenced by the applicant would support an interpretation that the access application should be or would be held to have been in fact received by the Nominal Insurer when all the information points elsewhere. Nor does s 53 support the respondent’s argument that the Nominal Insurer should be taken to have received the access application. Section 53 deals with searches for information held by an agency. It does not deem the access application be received by the agency which holds the information.

66. As acknowledged by the respondent, the access application is clear in being addressed to icare. The application also complies with the requirements of s 41 GIPA Act.

67. Both the respondent’s acknowledgement of the access application as valid and the subsequent determination that it was invalid were made on icare letterhead. As acknowledged by the respondent at the hearing, there is also no reference anywhere in the respondent’s decision to the access application having been taken to have been received by the Nominal Insurer or the decision having been made by the Nominal Insurer.

68. Section 154C of the Workers Compensation Act 1987 sets out:

154C Authority to act for Nominal Insurer

(1) ICNSW acts for the Nominal Insurer and anything done or omitted to be done by ICNSW on behalf of or in the name of the Nominal Insurer is taken to have been done or omitted by the Nominal Insurer.

(2) In acting for the Nominal Insurer, ICNSW has and may exercise all the functions of ICNSW under this Act, the 1998 Act or any other Act or law.

(3) A liability incurred by ICNSW when acting for the Nominal Insurer is a liability of the Nominal Insurer and not a liability of ICNSW or the State.

(4) To remove doubt, it is declared that the provisions of Division 2A of Part 3 of the Government Sector Audit Act 1983 extend to authorise a performance audit by the Auditor-General under that Division in respect of any activities of ICNSW when acting for the Nominal Insurer.

70. In FMM AP, the Appeal Panel considered s 154C and found (at [19]):

19 The deeming provision in s 154C(1) requires the adoption of a “statutory fiction” for the limited purpose prescribed by the Workers Compensation Act, namely that anything done or omitted to be done by ICNSW on behalf of or in the name of the Nominal Insurer is taken to have been done or omitted by the Nominal Insurer: Hunter Douglas Australia Pty Ltd v Perma Blinds (1970) 122 CLR 49 at 65. Accordingly, the conduct complained of in the internal review application may be taken to have been done by the Nominal Insurer. However, it remains the case that FMM made the application to Insurance and Care NSW, not to the Nominal Insurer. Section 154C(1) does not deem any complaint made in respect of conduct by Insurance and Care NSW to be a complaint made in respect of conduct by the Nominal Insurer.

71. Similarly here, on receipt of the access application, icare had its own obligations as an agency under the GIPA Act in accordance with Part 4, Div 3 of the GIPA Act. The “statutory fiction” under s 154C(1) does not apply and it did not allow the respondent to transfer those obligations to the Nominal Insurer (and so render the application invalid under s 43) by retrospectively arguing that it should have been taken to receive the access application on behalf of, or while acting for, the Nominal Insurer.

72. Section 154C(1) refers to “anything done or omitted to be done by on behalf of or in the name of the Nominal Insurer”. In the present circumstances it is the applicant who made the access application and the applicant who sought the information from icare. This was not an act undertaken by icare and does not come within the scope of s 154C of the Workers Compensation Act. Further, nothing in any of the correspondence from icare suggests that it received the application on behalf of or in the name of the Nominal Insurer.

73. Under s 52(3) of the GIPA Act, the respondent was obliged to provide advice and assistance, so far as it would be reasonable to expect the agency to do so, to assist the applicant to provide such information as was necessary to enable her to make a valid access application. Accordingly, it was open to the respondent to discuss the applicant’s access application with her and clarify the relevant receiving agency prior to a decision being made. There was no suggestion that they did so. As a result, they had no basis on which to attribute the access application to the Nominal Insurer when it was clearly addressed to icare.

74. In contending that s 154C has the effect that the Nominal Insurer was in fact the receiving agency, the respondent is attempting to overextend the reach of s 154C(1). The access application was addressed to icare. The applicant has consistently maintained that she sought the information from icare. It is not contested that icare and the Nominal Insurer are separate agencies. The respondent’s submissions are based on the agencies being separate and the Appeal Panel found similarly in FMM AP (although in a different statutory context which it is unnecessary in these circumstances to adopt or distinguish).

75. The access application was made to Insurance and Care NSW.

Was the access application rendered invalid by s 43?

76. As noted at paragraph [32] above, and acknowledged by the respondent, s 43 would only apply if the information sought was excluded information of the agency which received the access application.

77. As the agency which received the access application was Insurance and Care NSW, not the Nominal Insurer, s 43 does not apply and the access application was not rendered invalid by that section.

What is the correct and preferable decision?

78. The determination that the access application was invalid under s 43 was erroneous and cannot stand. The respondent submitted that if icare were the agency which received the access application, a different decision would be made. It is correct and preferrable for the matter to be remitted for that process to be undertaken and for the respondent to consider the access application in accordance with the GIPA Act and these reasons.

Orders

79. In accordance with these reasons and s 63(3)(d) of the ADR Act, I make the following order:

1. The administratively reviewable decision of the respondent that the access application is invalid is set aside and remitted for reconsideration by Insurance and Care NSW in accordance with the Government Information (Public Access) Act 2009 (NSW) and with the reasons in this decision, particularly the finding in paragraph [77].

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: 05 August 2025