Gardner v Transport for NSW

[2023] NSWCATAD 56

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Gardner v Transport for NSW [2023] NSWCATAD 56

Hearing dates:

1 March 2023

Date of orders:

14 March 2023

Decision date:

14 March 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

The decision of the respondent dated 27 September 2022 is affirmed.

Catchwords:

ADMINISTRATIVE LAW – administrative review – Government information – public interest test – balancing the public interest - Copyright – fair dealing exceptions

Legislation Cited:

Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Decisions Review Act 1997 (NSW)

Circuit Layouts Act 1989 (Cth)

Civil and Administrative Tribunal Act 2013 (NSW) Copyright Act 1968 (Cth)

Government Information (Public Access) Act 2009 (NSW)

Patents Act 1990 (Cth)

State Records Act 1998 (NSW)

Taxation Administration Act 1953 (Cth)

Trade Marks Act 1995 (Cth)

Transport Administration Act 1988 (NSW)

Cases Cited:

Amos v Central Coast Council [2018] NSWCATAD 101

Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57;

Computer Edge Pty Ltd v Apple Computer Inc (1986) 60 ALJR 313

Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34

Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286

Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46

Hoggett v Campbelltown City Council [2019] NSWCATAD 258

Hollinrake v Truswell [1894] 3 Ch 420

Hurst v Wagga Wagga City Council [2011] NSWADT 307

IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458

Leech v Sydney Water Corporation [2010] NSWADT 298

MJA Scientifics International Pty Ltd v S C Johnson and Son Pty Ltd (1998) 43 IPR 287

Meldru v Wollondilly Shire Council [2017] NSWCATAD 292

Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666

Sandy v Kiama Municipal Council [2019] NSWCATAD 49

Taylor v Destination NSW [2017] NSWCATAD 272

University of New South Wales v Moorhouse (1975) 133 CLR 1

Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479

Walker v Gosford City Council [2016] NSWCATAD 207

Webb v Port Stephens Council [2022] NSWCATAD 404

XCFB and National Disability Insurance Agency [2021] AATA 3285

YG & GG v Minister for Community Services [2002] NSWCA 247

Texts Cited:

None

Category:

Principal judgment

Parties:

Jason Gardner (Applicant)
Transport for NSW (Respondent)

Representation:

Solicitors:
Applicant (Self-represented)
Legal, Transport for NSW (Respondent)

File Number(s):

2022/00386591

Publication restriction:

None

REASONS FOR DECISION

Background

1. These proceedings concern a request that Jason Gardner (the applicant) made to Transport for NSW (the respondent) on 11 August 2022 for the release of information under the Government Information (Public Information) Act 2009 (NSW) (the GIPA Act), as follows:

Please supply mobile speed camera certification details and operation manuals for penalty notice numbers 9008540934 & 9008499345.

Also in addition please provide mobile speed camera position specificities at times shown on penalty notices in regard to exact position of vehicle. (IE: outside house number ? parked on nature strip etc).

2. On 12 September 2022, the respondent acknowledged receipt of the application and advised the applicant that it was required to consult with third parties. Pursuant to s 57(2) of the GIPA Act, it extended the timeframe for deciding the application by 10 working days, to 26 September 2022.

Decision at first instance

3. On 27 September 2022, the respondent issued a Notice of Decision under the GIPA Act and decided to provide access in part to the information sought under s 58(1)(a). The decision outlined the searches that were conducted and information that was identified as being within the scope of the application (being a total of seven items). It decided to provide access to redacted copies of six of those items (redactions being made pursuant to ss 74 and 75 of the GIPA Act). However, in relation to item one, which comprises “Redflex Standard Operating Instructions for Mobile Speed Camera Operators dated 15 December 2020”, the respondent decided to provide the applicant with view-only access pursuant to s 58(1)(a), item 4(d) of the Table to s 14(2) and s 72(1)(c) of the GIPA Act.

4. The respondent stated that the public interest test was applied and that in doing so, the following public interest considerations in favour of disclosure were identified pursuant to s 12 of the GIPA Act: (1) The general public interest in favour of disclosure of government information under s 12(1); (2) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public; (2) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance government accountability or contribute to positive and informed debate on issues of public importance such as the operation of enforcement cameras across the State road network; and (4) Disclosure of information could assist a person to ascertain whether they may have an available cause of action.

5. In addition, under s 55(2) of the GIPA Act, the respondent considered the applicant’s personal factors, namely that had been issued with two penalty infringement notices related to infringements that were detected by mobile speed cameras (MSCs) and he wished to access information in relation to the operation, certification, and location of the relevant MSCs that detected the infringements. The respondent considered that there is a public interest in favour of the release of the general geographic area of the MSCs when the infringements were recorded to the extent that it demonstrates that the MSCs were at the relevant locations at the time in question.

6. The respondent attributed medium weight to the identified public interest considerations in favour of disclosure of the information and the applicant’s personal factors of the application.

7. The respondent stated that as the information sought in the GIPA request includes business information of a third party, it was required to consult with that entity before releasing the information pursuant to s 54 of the GIPA Act. It stated that Verra Mobility Pty Ltd (Verra Mobility) objected to the release of item 1 and that whilst this does not mean that the information cannot be released, the respondent must take it into account in making the decision.

8. The respondent stated that Verra Mobility is the owner of the intellectual property in the information that the applicant sought to obtain from it and that this entity had recently acquired Redflex Traffic Systems Pty Ltd (Redflex), the author of the information contained in item 1 of the GIPA request. Verra Mobility did not object to it providing the applicant with access by way of viewing only. These factors were considered when applying and balancing the public interest test.

9. The respondent identified item 4(d) of the Table to s 14(2) of the GIPA Act as a relevant public interest consideration against disclosure. This provides, relevantly:

4 Business interests of agencies and other persons

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects—

…

(d) prejudice any person’s legitimate business, commercial, professional or financial interests,

10. The respondent stated that in determining whether cl 4(d) applies to item 1 of the GIPA request, it was necessary to identify the legitimate business or commercial interest of the third party and to explain how the relevant interest of the third party would be prejudices if the information was disclosed. It decided that:

1. The main purpose of the MSC manual authored by Redflex is to provide a standard set of operating procedures that regulate the use of MSCs;

2. The intended audience of the manual is MSC operators, together with MSC technicians and it was made available to the respondent as part of the Mobile Speed Camera Services Agreement and for auditing purposes. Accordingly, it is not a document that is ordinarily published or made available to the public by the respondent; and

3. The information contained within the manual has been marked “commercial-in-confidence” and the author and owner of the document has asserted its copyright in the information contained in the document, including references to the fact that the information contained in the document is confidential and that no part of the document may be reproduced without the prior written permission of the author and owner.

11. The respondent stated that Copyright in Australia is governed by the Copyright Act 1968 (Cth) (the Copyright Act) and that the Manual comprises literary and artistic works pursuant to the definitions within s 10 of the Copyright Act, namely:

artistic work means:

(a) a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not;

(b) a building or a model of a building, whether the building or model is of artistic quality or not; or

(c) a work of artistic craftsmanship whether or not mentioned in paragraph (a) or (b);

but does not include a circuit layout within the meaning of the Circuit Layouts Act 1989 .

literary work includes:

(a) a table, or compilation, expressed in words, figures or symbols; and

(b) a computer program or compilation of computer programs.

12. The respondent stated that it was satisfied that Reflex, and subsequently Verra Mobility, which acquired Reflex’s intellectual property including its copyright in item 1 of the GIPA request when it acquired Redflex, has a legitimate commercial and business interest in the information.

13. The respondent stated that it provided with access to this information for the purpose of executing its functions under the Transport Administration Act 1988 (NSW) (the TAA). Schedule 1 cl 4 provides:

4 Road safety, road travel efficiency and road traffic management

(1) TfNSW may—

(a) conduct testing, research and investigations in connection with promoting or improving road safety, road travel efficiency and road traffic management, and

(b) develop and implement programs, projects, strategies and campaigns for promoting or improving road safety, road travel efficiency and road traffic management, and

(c) provide advice and assistance to public and local authorities for the promotion or improvement of road safety, road travel efficiency and road traffic management.

(2) In this clause, road safety refers to safety in connection with roads, road vehicles and all aspects of road usage.

14. The respondent decided that MSCs are a fundamental component of the NSW Speed Camera Strategy in conjunction with NSW Police operations and additional enforcement cameras operated by it across the NSW State road network. This strategy is one of several State and National strategies implemented by State of Federal Governments intended to promote a community-wide reduction in speeding to save lives and precent injuries on our roads. The owner of the copyright had invested significant time and resources into the development of the material over which the claim for property is asserted and it is necessary to protect the investment of the commercial and business interests of the copyright owner from the public release and exploitation of an original work, particularly in circumstances where the author and/or owner of the copyright object to the copying of the information.

15. The respondent stated that the Tribunal in Sandy v Kiama Municipal Council traversed this issue [2019] NSWCATAD 49 (Sandy), with reference to the Federal Court’s decision in University v Moorhouse (1974) 133 CLR 1, where the Tribunal ultimately conceded that the agency’s copying of the relevant document would be tantamount to a breach of copyright. The Tribunal stated (at [29]):

Copyright is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia or authorises the doing in Australia of any act comprised in the copyright. Reproducing a work in a material form is an act comprised in the copyright. Therefore, reproducing or copying the work, or authorising such an act, will infringe the copyright unless an exception applies.

16. The respondent decided that if it were to provide access by releasing a copy of the information contained in item 1, it would infringe the copyright under s 36(1) of the Copyright Act. Further, it had regard to the principles in s 15(e) of the GIPA Act, whereby disclosure in response to an access application cannot be made subject to any conditions on the use or further disclosure of information. Therefore, it would be unable to limit any further dissemination of the document, which if disseminated further without the consent of the copyright owner, may infringe the copyright owner’s copyright and result in the legitimate prejudice of its business interests and require it to commence suit against third parties for infringement of copyright.

17. For these reasons, the respondent decided that cl 4(d) of the Table to s 14(2) of the GIPA Act applies to the information in item 1 of the GIPA request and it afforded it significant weight.

18. In relation to the information sought in items 6 and 7 of the schedule of documents, the respondent decided that cll 1(f) and 2(d) of the table to s 14(2) of the GIPA Act applied and it attributed these factors moderate weight.

19. The respondent stated that in balancing the public interest test, it decided that there was an overriding public interest against releasing the information in item 1 to the applicant by way of copying it, but that there is no overriding public interest against disclosure by way of view-only access. With respect to items 6 and 7 of the schedule of documents, it decided that the balance weighed in favour of releasing GPS data insofar as it relates to the penalty infringement notices that are the subject of the GIPA request.

20. The respondent advised the applicant that it had decided to waive processing charges for the GIPA request.

External review by the Information and Privacy Commissioner

21. On 30 September 2022, the applicant applied to the Information and Privacy Commissioner for an external review of the decision to provide him with view-only access to the information in item 1 of the schedule of documents.

22. On 19 December 2022, the Information and Privacy Commissioner issued a review report, which concluded that the respondent’s decision was justified and it made no recommendation to the respondent.

Application for administrative review and procedural directions

23. On 22 December 2022, the Tribunal received the current application for administrative review, which sough a review of the decision of the Information and Privacy Commissioner dated 19 December 2022, on the following grounds:

My application is for access to the operation manual relevant to my case in order to provide for a professional report to be tendered to court, a suitable line of questioning for the witnesses to be made for the hearing and my legal representative to be equally informed of the material relevant to the case before the court, which is material in the possession of Transport for NSW (the prosecutor) and therefore by law required to be made freely available to the defendant.

The review by IPC appears to have simply copy-and-pasted the response from the original GIPA application without considering all relevant laws relevant to my application for this documentation which is in order to support my legal defence which copyright low allows for as follows:

(1) Fair dealing for research or study

28.12 (of) the Copyright act provides for certain acts of “fair dealing” in a copyright work, which constitute exceptions to copyright infringement.

The Copyright Act provides for fair dealing in a copyright work for the purpose of research or study, criticism or review, reporting news, judicial proceedings, or giving professional advice.

The law allows for access to copy and use copyrighted material for these purposes and the two government agencies responsible for providing access to this material would be aware of this information.

Additional to (1) is a prosecutor’s duty of disclosure in the NSW Local Court.

(2) the prosecution in general must follow a duty of disclosure when undertaking a criminal case, which requires them to disclose all information in their possession what could be of relevance in any way to a defendant’s case. This duty is established both in common law and it’s set out in legislation.

I also mention that the reasoning used by both GIPA and the Information and Privacy Commission to reject my application/review seeks to suggest that I am looking to plagiarise the requested material for profitable gain which is clearly not the intended use for the access to this material.

24. On 10 January 2023, the Information and Privacy Commission sent an email to the Tribunal, noting that it was named as the respondent to the current application. However, its decision is not reviewable under s 80 of the GIPA Act, and the reviewable decision is that of the respondent dated 27 September 2022.

25. On 11 January 2023, Principal Member Simon ordered the parties to provide any written submissions or material they intended to rely upon in relation to the naming of the correct respondent and jurisdiction by 20 January 2023.

26. On 12 January 2023, Principal Member Simon ordered that the respondent be joined as a respondent to the application and noted that the applicant was to advise whether he sought to remove the Information and Privacy Commissioner as a party.

27. On 16 January 2023, Principal Member Simon ordered that the Information and Privacy Commissioner be removed as a respondent.

28. On 30 January 2023, Senior Member Higgins conducted a case conference. She ordered the respondent to file and serve an Agency Response form and all applications and decisions made under the GIPA Act, including those relating to any internal review, by 1 February 2023. She also ordered the respondent to provide a copy of her orders to the owner of the copyright in the event that it sought to be joined as a party to the proceedings. She ordered the respondent to file and serve all evidence, including statements, documents and submissions by 13 February 2023 and ordered the applicant to file and serve all evidence, including documents, statements and submissions in response by 20 February 2023. She directed the respondent to give the Tribunal a copy of the information sought in item 1 of the schedule of documents on a confidential basis by 13 February 2023 and listed the matter for an AVL hearing on 1 March 2023.

29. Senior Member Higgins noted that applicant only pressed for access to the information in item 1 of the schedule of documents in order to prepare his cross-examination for proceedings that are pending in the Local Court and that a subpoena seeking production of this information has been issued by the Court at the applicant’s request. However, the respondent had objected to production based on public interest immunity and that objection is listed for hearing on 7 March 2022 (sic).

The hearing

30. I conducted a hearing by way of AVL on 3 March 2023. The applicant appeared in person and Mr Hudson appeared for the respondent.

31. The Tribunal received the parties’ evidence and as there were no objections, and no witness was required for cross-examination, this was admitted as follows:

1. Affidavit of Victor Wardrop dated 10 February 2023 – Ex 1;

2. Respondent’s submissions dated 13 February 2023; and

3. Applicant’s submissions dated 20 February 2023.

Respondent’s evidence

32. Mr Wardrup deposed that he is the Vice President, Commercial, Asia Pacific Region, of Redflex and that he is authorised to make the affidavit on behalf of Verra Mobility. He is the primary account manager for the respondent and has day-to-day oversight of the commercial relationship between Verra Mobility and the respondent. He stated that Reflex is the author of the information sought by the applicant in this GIPA request.

32. Mr Wardrup stated that on 18 September 2022, following consultation from the respondent, he notified the respondent that Verra Mobility objected to the applicant being provided with a copy of the information, but that it did not object to him being given an opportunity to inspect the document. He stated that this position is maintained to date and that neither Redflex nor Verra Mobility have provided the respondent with a licence or other authority that would permit the respondent to provide the applicant with a copy of the information without infringing its copyright in it.

33. Mr Wardrup stated that the document is considered to be highly commercially sensitive and that it was prepared specifically for the respondent pursuant to the Redflex’s contractual obligations in relation to the services it provides to the respondent. It was provided to the respondent on the basis that it would be kept strictly confidential and for the limited purpose of allowing the respondent’s inspectors to undertake quality audits of Redflex’s delivery of services.

Respondent’s submissions

35. The respondent argued that the Tribunal’s administrative review jurisdiction is conferred by s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) and s 9 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). Section 100 of the GIPA Act provides for administrative review of different classes of “reviewable decisions” specified in s 80 of the GIPA Act, including a decision to provide access in a particular way or a decision not to provide access in the way requested by the applicant: s 80(i). The Tribunal is required to decide what is the correct and preferable decision having regard to the material before it: s 63(1) of the ADR Act. The Tribunal stands in the shoes of the administrator and makes the decision anew: Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666,671. The onus of establishing that a decision is justified rests on the agency: s 105 of the GIPA Act.

36. Part 4 of the GIPA Act enables a person to make a formal application for access to government information and a person who makes an access application has a legally enforceable right to be provided with access to the requested information unless there is an overriding public interest against disclosure of that information.

37. In deciding the applicant’s GIPA request, the respondent applied the public interest test in s 13 of the GIPA Act, determined that there was not an overriding public interest against disclosure of any of the information sought by the applicant: s 58(1)(a) of the GIPA Act.

38. However, the applicant challenged its decision under s 72 of the GIPA Act regarding the form in which access to the information contained in the Operating Instructions would be provided to him. This is the relevant decision for review by the Tribunal in these proceedings.

39. Section 72 of the GIPA Act provides, relevantly:

72 Forms of access

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

…

(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),

…

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

…

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

…

Note—

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

40. The respondent argued that:

1. It has a discretion to provide access in any of the ways specified in s 72(1);

2. The discretion is qualified by the requirement to provide access in the way requested by the applicant, unless one of the exceptions specified in s 72(2) applies. If an exception applies, the form of access remains a matter of discretion for the respondent; and

3. Section 72(2)(c) is concerned with whether the agency’s act of providing access would involve an infringement of copyright. The applicant’s intended use of the information after access is provided has no relevance to this question.

41. In this matter, the respondent decided to provide the applicant with access to the Operating Instructions in the way provided by s 72(1)(c) of the GIPA Act namely, to allow him the opportunity to read and view the document. It was not required to provide the applicant with a copy of the information, being the form of access he requested, because to do so would involve an infringement of copyright. It was therefore within the respondent’s discretion to decide to provide the applicant with “view only” access.

42. The respondent argued that for the Tribunal to be satisfied that its decision to provide “view only” access is the correct and preferable decision, it must be satisfied that to provide the applicant with a copy of the information would involve an infringement of the copyright.

43. Section 32 of the Copyright Act provides, relevantly:

Original works in which copyright subsists

(1) Subject to this Act, copyright subsists in an original literary, dramatic, musical or artistic work that is unpublished and of which the author:

(a) was a qualified person at the time when the work was made; or

(b) if the making of the work extended over a period--was a qualified person for a substantial part of that period.

(2) Subject to this Act, where an original literary, dramatic, musical or artistic work has been published:

(a) copyright subsists in the work; or

(b) if copyright in the work subsisted immediately before its first publication--copyright continues to subsist in the work;

if, but only if:

(c) the first publication of the work took place in Australia;

(d) the author of the work was a qualified person at the time when the work was first published; or

(e) the author died before that time but was a qualified person immediately before his or her death.

…

(4) In this section, qualified person means an Australian citizen or a person resident in Australia.

44. The words “literary work” include a work which is expressed in print or writing: University of London Press Ltd v University Tutorial Press Ltd [1916] s Ch 1, 609. The adjective “literary” does not mean that the work must be of any particular standard or literary style or merit: Computer Edge Pty Ltd v Apple Computer Inc (1986) 65 ALR 33, 53-4. It is sufficient that the work provides information or instruction: Hollinrake v Truswell [1894] 3 Ch 420, 428. Product instructions have been specifically held to constitute “a literary work”: MJA Scientifics International Pty Ltd v SC Johnson & Son Pty Ltd (1998) 43 IPR 287.

45. Section 10 of the Copyright Act also provides that a “literary work” includes:

(a) a table, or compilation, expressed in words, figures or symbols; and

(b) a computer program or compilation of computer programs.

46. The Tribunal considered the meaning of an “original” literary or artistic work in Sandy at [24]:

For copyright to subsist in a literary or artistic work, it must be original (Copyright Act s 32(1) and (2)). The concept of “originality” is not defined in the Act. The law on this topic indicates that “originality” means that the creation or production of the work required some independent intellectual effort, but novelty or inventiveness is not required. The work must have originated “with an author or joint authors from some independent intellectual effort” (IceTV Pty Limited v Nine Network Australia Pty Limited (2009) AIPC 92-335 per French CJ, Crennan and Kiefel JJ). The work must originate with the author and be more than a copy of other material, as stated by Dixon CJ in Victoria Park Racing and Recreation Grounds Co Ltd v Taylor & Ors (1937) 58 CLR 479 at 511…

47. The respondent argued that the Operating Instructions are an original literary work in which copyright subsists under the Copyright Act because:

1. They are, on their face, plainly an original written work (including tables and figures) providing information and instruction relating to the operation of Reflex mobile speed cameras; and

2. Their author is Redflex.

3. The third page also contains the following copyright notice:

Copyright

© 2020 Redflex Traffic Systems

All rights reserved. The information contained within this document is confidential. No part of this document may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means (electronic, mechanical, photocopying, recording or otherwise) without the prior written permission of the Redflex Traffic Systems.

48. Copyright includes the exclusive right to reproduce the work in a material form. Section 31(1) of the Copyright Act provides:

Nature of copyright in original works

(1) For the purposes of this Act, unless the contrary intention appears, copyright, in relation to a work, is the exclusive right:

(a) in the case of a literary, dramatic or musical work, to do all or any of the following acts:

(i) to reproduce the work in a material form;

(ii) to publish the work;

(iii) to perform the work in public;

(iv) to communicate the work to the public;

(vi) to make an adaptation of the work;

(vii) to do, in relation to a work that is an adaptation of the first-mentioned work, any of the acts specified in relation to the first-mentioned work in subparagraphs (i) to (iv), inclusive; and

(b) in the case of an artistic work, to do all or any of the following acts:

(i) to reproduce the work in a material form;

(ii) to publish the work;

(iii) to communicate the work to the public; and

(c) in the case of a literary work (other than a computer program) or a musical or dramatic work, to enter into a commercial rental arrangement in respect of the work reproduced in a sound recording; and

(d) in the case of a computer program, to enter into a commercial rental arrangement in respect of the program.

49. Section 36 of the Copyright Act provides:

Infringement by doing acts comprised in the copyright

(1) Subject to this Act, the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright.

(1A) In determining, for the purposes of subsection (1), whether or not a person has authorised the doing in Australia of any act comprised in the copyright in a work, without the licence of the owner of the copyright, the matters that must be taken into account include the following:

(a) the extent (if any) of the person's power to prevent the doing of the act concerned;

(b) the nature of any relationship existing between the person and the person who did the act concerned;

(c) whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice.

(2) The next three succeeding sections do not affect the generality of this section.

50. Section 43 of the Copyright Act provides:

Reproduction for purpose of judicial proceedings or professional advice

(1) The copyright in a literary, dramatic, musical or artistic work is not infringed by anything done for the purposes of a judicial proceeding or of a report of a judicial proceeding.

(2) A fair dealing with a literary, dramatic, musical or artistic work does not constitute an infringement of the copyright in the work if it is for the purpose of the giving of professional advice by:

(a) a legal practitioner; or

(b) a person registered as a patent attorney under the Patents Act 1990; or

(c) a person registered as a trade marks attorney under the Trade Marks Act 1995 .

51. In Amos v Central Coast Council [2018] NSWCATAD 101 (Amos), Senior Member Lucy stated (at [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.”…

52. Principal Member Ludlow expressed similar reasoning in Sandy (at [29]):

Copyright is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of any act comprised in the copyright. Reproducing a work in a material form is an act comprised in the copyright. Therefore, reproducing or copying the work, or authorising such an act, will infringe the copyright unless an exception applies…

53. The respondent argued that copying the documents does not fall into any of the exceptions to infringement set out in the Copyright Act. It noted that the applicant seeks to rely upon the exceptions to infringement found in s 40 of the Copyright Act (fair dealing for the purpose of research or study), s 41 (fair dealing for the purpose of criticism and review), s 42 (fair dealing for the purpose of reporting news) and s 43 (reproduction for the purpose of judicial proceedings or professional advice).

54. In Amos, Senior Member Lucy considered the application for the fair dealing exception in s 41 of the Copyright Act within the context of the GIPA Act and stated (at [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.

55. In Amos, the Tribunal considered whether the fair dealing exception in s 41 of the Copyright act permitted the respondent to provide a copy of the information applied for in the manner requested by the applicant. The respondent argued that the same principles apply with respect to the applicant’s reliance on s 40.

56. The respondent argued that in determining whether providing access to the information in the manner requested by the applicant would involve an infringement of copyright, the Tribunal must look at the respondent’s purpose for copying and not the applicant’s purpose. In this matter, the respondent’s purpose for copying would infringe the Copyright Act, as it would be for the purpose of fulfilling its obligations under the GIPA Act. This is not a fair dealing exception.

57. The Respondent argued that the Tribunal should follow other decisions in which the Tribunal allowed view-only inspection of information applied for, consistent with s 72(2)(c) of the GIPA Act:

1. In Webb v Port Stephens Council [2022] NSWCATAD 404, the decision to allow view-only access to training materials (protected as literary works) was affirmed.

2. In Sandy, the decision to provide view-only access to architectural plans (in that case protected as artistic work) was affirmed;

3. In Amos, the decision to provide view only access to technical reports was affirmed;

4. See also: Hoggett v Campbelltown City Council [2019] NSWCATAD 258 and Walker v Gosford City Council [2016] NSWCATAD 207.

Applicant’s submissions

58. The applicant argued that the respondent providing him with access to the Operating Instructions in the form he requested would not infringe the Copyright Act because of the intended use of the material, being for the formulation of a defence in relation to the traffic infringement cases currently before the (Local) Court and specifically, to construct a line of questioning for the speed camera operators and certifiers, whom he intended to subpoena to give evidence in those proceedings.

59. The applicant argued that his intended purpose amounts to fair dealing under ss 40(1), 40(1)(a) and 40(1)(b) of the Copyright Act. He also argued that s 43 also applies on the basis that it will not be possible to question the intended witnesses if he has view-only access. In particular, he stated:

The respondent’s assertion in the submission to the Tribunal that “the applicant’s intended use of the information after access is provided has no relevance to this question” seeks to remove the respondent’s knowledge of the applicant’s intended use for the material in question and to circumvent the respondent’s ability to allow access to the document according to the applicant’s request in line with the relevant copyright law fair dealing clause which are specifically cited for this use…

60. Further, the applicant stated that the release of the literary work, in the manner he requested, is justified and allowable within the exceptions to the Copyright Act 1968 as it was intended, without copyright infringement.

61. The applicant also cited a decision of the Administrative Appeals Tribunal of Australia in XFCB and National Disability Insurance Agency [2021] AATA 3285, which referred to s 35(50(c) of the Administrative Appeals Tribunal Act 1975, which provides that “the contents of documents lodged with the Tribunal should be made available to the parties”.

Respondent’s oral submissions

62. During the hearing, Mr Hudson relied upon the written submissions and argued that if the respondent provided access to the Operating Instructions in the form requested by the applicant would involve an infringement of copyright. The fair dealing exceptions to not apply to this matter, because it is the respondent’s purpose in providing the information that is relevant and not the applicant’s intended use if/when the information is provided to him. The respondent also noted that the judicial proceedings exception does not apply in this matter because the current proceedings are administrative review proceedings and not judicial proceedings.

63. The respondent argued that the Tribunal should apply the principles set out in Amos and find that the correct and preferable decision is to affirm its decision to provide view-only access to the applicant.

Applicant’s oral submissions

64. The applicant stated that he has issued a subpoena addressed to the respondent in the Local Court, but he has not issued a subpoena to the copyright owner.

65. The applicant also argued that ownership of the copyright is not relevant to the exception under s 40 of the Copyright Act and he relies upon s 43. He therefore pressed for an order that provides him with a copy of the Operating Instructions.

Consideration

Legal principles

66. The legal principles under consideration are not in dispute. The current application is brought before the Tribunal under s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision".

67. On an application made under s 63 of the ADR Act, the Tribunal undertakes an administrative review of a reviewable decision and determines the correct and preferable decision, having regard to any relevant factual material before it. Section 63 of the ADR Act states:

63. Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

68. The time at which the Tribunal is to determine the correct and preferable decision the time that it makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [55].

The GIPA Act

69. In respect of access applications, s 9(1) of the GIPA Act relevantly provides:

A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.

70. I am satisfied that the Decision dated 27 September 2022 is a reviewable decision for the purposes of s 80 of the GIPA Act and that this is the subject of the current administrative review under s 100 of the GIPA Act.

71. In an administrative review under s 100 of the GIPA Act, several provisions of the GIPA Act are of particular relevance and these are summarised below.

72. Section 5 of the GIPA Act provides that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.

73. Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information" and the NSW Information Commissioner "can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies".

74. Section 13 sets out a "public interest test" which requires a determination of whether "on balance" there are public interest considerations against disclosure which outweigh the public interest considerations against disclosure.

75. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and:

1. identify the public interest in favour of disclosure (s 12);

2. identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and

3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.

76. The Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an “overriding public interest against disclosure”: s13.

77. Section 14 relevantly provides:

14. Public interest considerations against disclosure

(1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1.

(2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

(3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section.

78. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech).

79. Section 14(2) of the GIPA Act provides:

The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.

80. Item 4(d) to the Table in s 14(2) provides, relevantly:

4 Business interests of agencies and other persons

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects—

…

(d) prejudice any person’s legitimate business, commercial, professional or financial interests, …

81. Section 53 of the GIPA Act provides for the type and scope of searches for information that come within an access application, as follows:

53. Searches for information held by agency

(1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received.

(2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency’s searches must be conducted using the most efficient means reasonably available to the agency.

(3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically.

(4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency’s established record management procedures.

(5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency’s resources.

82. Section 55 of the GIPA Act refers to “personal factors” that may be brought into consideration with respect to an agency’s determination of whether there is an overriding public interest against disclosure of information. This provides:

55. Consideration of personal factors of application

(1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the "personal factors of the application") into account as provided by this section—

(a) the applicant’s identity and relationship with any other person,

(b) the applicant’s motives for making the access application,

(c) any other factors particular to the applicant.

(2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14.

83. Section 64 of the GIPA Act provides:

64 Processing charge for dealing with access application

(1) An agency may impose a charge (a processing charge) for dealing with an access application at a rate of $30 per hour for each hour of processing time for the application.

Note—

The decision to impose a processing charge is reviewable under Cl 5.

(2) The processing time for an application is the total amount of time that is necessary to be spent by any officer of the agency in—

(a) dealing efficiently with the application (including consideration of the application, searching for records, consultation, decision-making and any other function exercised in connection with deciding the application), or

(b) providing access in response to the application (based on the lowest reasonable estimate of the time that will need to be spent in providing that access).

(3) The application fee of $30 paid by an applicant counts as a payment towards any processing charge payable by the applicant.

(4) Access to government information granted in response to an access application may be made conditional on payment of any processing charge imposed for dealing with the application.

(5) A processing charge must not be discounted under section 65 or 66 by more than 50% even if both sections apply.

84. Section 73 of the GIPA Act requires that access is unconditional in the sense that no terms or conditions may be imposed as to the use or the manner in which information is to be disclosed in response to an access application. This has often been described as being disclosure made “to the world”.

85. Section 105 of the GIPA Act places the onus on the agency to establish that its decision is justified. The agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10] (Fisher); Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7] (Meldru).

Matters in dispute

86. In this matter, I am satisfied that the disputed information is protected by copyright and it is necessary to consider whether the provision of the information in the form requested by the applicant would involve an infringement of copyright.

87. However, I am also required to consider the public interest considerations in favour of disclosure of the information and those against its disclosure and to balance the public interest.

Public interest considerations in favour of disclosure

88. I am satisfied that the respondent correctly identified the relevant public interest considerations in favour of disclosure as follows:

1. The general public interest in favour of disclosure of government information under s 12(1);

2. Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public;

3. Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance government accountability or contribute to positive and informed debate on issues of public importance such as the operation of enforcement cameras across the State road network; and

4. Disclosure of information could assist a person to ascertain whether they may have an available cause of action.

89. Further, I agree that the respondent correctly considered the applicant’s personal factors under s 55(2) of the GIPA Act, namely that had been issued with two penalty infringement notices related to infringements that were detected by mobile speed cameras (MSCs) and he wished to access information in relation to the operation, certification, and location of the relevant MSCs that detected the infringements. The respondent considered that there is a public interest in favour of the release of the general geographic area of the MSCs when the infringements were recorded to the extent that it demonstrates that the MSCs were at the relevant locations at the time in question.

90. I note that the respondent attributed moderate weight to these factors and I am satisfied that this was appropriate in the circumstances of this matter.

Public interest considerations against disclosure

91. Section 72(2) of the GIPA Act provides that the agency must provide access in the way requested by the applicant unless:

(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.

92. The respondent stated that it consulted with the copyright holder (Verra Mobility), which objected to the release of a copy of the disputed information to the applicant, but it did not object to the applicant being provided with view-only access.

93. The respondent identified item 4(d) of the Table to s 14(2) of the GIPA Act as a relevant public interest consideration against disclosure. This provides, relevantly:

4 Business interests of agencies and other persons

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects—

…

(d) prejudice any person’s legitimate business, commercial, professional or financial interests,

94. The respondent decided that:

1. The main purpose of the MSC manual authored by Redflex is to provide a standard set of operating procedures that regulate the use of MSCs;

2. The intended audience of the manual is MSC operators, together with MSC technicians and it was made available to the respondent as part of the Mobile Speed Camera Services Agreement and for auditing purposes. Accordingly, it is not a document that is ordinarily published or made available to the public by the respondent; and

3. The information contained within the manual has been marked “commercial-in-confidence” and the author and owner of the document has asserted its copyright in the information contained in the document, including references to the fact that the information contained in the document is confidential and that no part of the document may be reproduced without the prior written permission of the author and owner.

95. The relevant provisions of the Copyright Act have been set out in detail in parties’ written submissions. Based upon the relevant case law, it is necessary for the Tribunal to determine whether providing a copy of the disputed information to the applicant would be a permitted exception within either s 40(1) or s 43 of the Copyright Act. If ‘yes”, such an act would not constitute a breach of copyright. If “no”, it would involve an infringement of copyright.

96. The applicant argues that the purpose that is relevant to ss 40(1) and 43 is his intended use of the information (after it has been provided to him) and not the respondent’s purpose in providing it. However, there is no case law that supports this submission.

97. The respondent argues that its purpose in providing the information to the applicant is relevant and that it would not be providing the information for the purpose of any fair dealing provided for in either s 40(1) or s43 of the Copyright Act. Rather, its purpose for providing a copy of the disputed information would be to fulfil its obligations under the GIPA Act and, based on the decisions in Sandy and Amos, this is not a fair dealing exception under either s 40(1) or s 43 of the Copyright Act.

98. The respondent attributed significant weight to these factors, and cl 4(d) in particular, and based on the information before me, I agree with that decision.

99. In balancing the public interest considerations, I have decided that there is an overriding public interest against disclosing the disputed information to the applicant in the manner that he has requested, but there is no overriding public interest against disclosure by way of view-only access under s 72(1)(a) of the GIPA Act.

100. In this matter, there is no dispute that the respondent does not own the copyright to the disputed information and there is no dispute that the copyright owner has not authorised or otherwise licenced the respondent to provide a copy of the disputed information to the applicant.

101. Based upon the decisions in Sandy and Amos, I am satisfied that it is the respondent’s purpose for providing the disputed information that is relevant when considering whether a “fair dealing” exception has been established under ss 41 or 43 of the Copyright Act. I agree with Senior Member Lucy’s comments in Amos, that if it was 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.

102. If follows that I am satisfied that if respondent decided to provide the applicant with a copy of the disputed information, its sole purpose for doing so would be to fulfil its obligations under the GIPA Act and this does not establish a “fair dealing” exception under s 41 of the Copyright Act.

103. Accordingly, I am satisfied that there is an overriding public interest against disclosure of the disputed information to the applicant in the way requested by the applicant and that the respondent’s decision to provide view-only access is the correct and preferable decision.

Conclusion

104. For the reasons set out above, pursuant to s 63(3)(a) of the ADR Act, the decision of the respondent dated 27 September 2022 is affirmed.

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: 14 March 2023