Larsen v The Cabinet Office - [2023] NSWCATAD 322

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Larsen v The Cabinet Office [2023] NSWCATAD 322
Hearing dates: 13 November 2023
Date of orders: 14 December 2023
Decision date: 14 December 2023
Jurisdiction: Administrative and Equal Opportunity Division
Before: J D Little, Senior Member
Decision:
1. The Respondent’s decision of 3 July 2023 is set aside.
2. Within 7 days the Respondent is to provide the Applicant with a copy of the information sought, re-redacted consistent with this decision.
3. Pursuant to s 44 of the Civil and Administrative Tribunal Act 2013 (CAT Act), the Department and Cabinet is removed as a party and The Cabinet Office is named as the Respondent to the proceedings.
4. With the exception of document at tab 1, pursuant to s 64(d) of the CAT Act, the disclosure to the Applicants of the Respondent’s bundle of confidential evidentiary material (third party consultation) filed 12 September 2023 is prohibited.
5. Except pursuant to order (6) below, the contents of all paragraphs in these reasons marked “[NOT FOR PUBLICATION]” are not to be published or released pursuant to s64(1)(c) of the CAT Act.
6. A copy of these reasons, without redaction, shall be released to the Respondent.

Catchwords:
ADMINISTRATIVE LAW – access to government information – access applications

Legislation Cited:
Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Government Information (Public Access) Act 2009
Privacy and Personal Information Protection Act 1998

Cases Cited:
Applicants v Commissioner of Police [2015] NSWCATAD 22
Battin v University of New England [2013] NSWADT 73
Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80
Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601
Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286
Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [47]
Leech v Sydney Water Corporation [2010] NSWADT 298
Nakhl Nasr v State of New South Wales; George Nasr v State Of New South Wales [2007] NSWCA 101
Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98
Selby v Commissioner of Police (NSW) [2013] NSWADT 61
Taylor v Destination NSW [2017] NSWCATAD 272
Transport for NSW v Searle [2018] NSWCATAP 93
Veall v Department of Planning and Environment [2018] NSWCATAD 47

Texts Cited:
None cited

Category: Principal judgment
Parties: Derek Larsen (First Applicant)
Floyd Larsen (Second Applicant)
Department of Premier and Cabinet (Respondent)
Representation: First Applicant (Self-Represented)
Second Applicant (Self-Represented)
Crown Solicitor (Respondent)

File Number(s): 2023/00220583
Publication restriction: 1. Except pursuant to (2) below, the contents of all paragraphs in these reasons marked “[NOT FOR PUBLICATION]” are not to be published or released pursuant to s64(1)(c) of the CAT Act.
2. A copy of these reasons, without redaction, shall be released to the Respondent.

REASONS FOR DECISION

Background

The access application

On 13 December 2022, the Applicants made application under the Government Information (Public Access) Act 2009 (the GIPA Act) to the Office of the Premier of NSW (as it was then known) seeking…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWCATAD 322
Decision Date: 14 December 2023

CaseChat Overview and Summary

Larsen brought proceedings against the Cabinet Office seeking access to certain government information under the Government Information (Public Access) Act 2009 (GIPA Act). The dispute centred on Larsen's request for documents that the Cabinet Office had refused to disclose, citing exemptions under the GIPA Act. The Civil and Administrative Tribunal (CAT) was tasked with determining whether the Cabinet Office's refusal to disclose the information was lawful.

The court had to decide whether the exemptions applied by the Cabinet Office were justified under the GIPA Act. Specifically, it had to consider whether the information fell within the exemptions for matters of national security, cabinet confidence, and third-party confidentiality. Additionally, the court needed to determine if the exemptions could be overridden by the public interest in disclosure, as provided for under the GIPA Act.

In its decision, the tribunal found that the Cabinet Office had not adequately justified the application of the exemptions. The tribunal held that the exemptions for national security and cabinet confidence were not applicable to the information in question. Regarding the exemption for third-party confidentiality, the tribunal found that the Cabinet Office had failed to demonstrate that disclosure would harm the third parties. The tribunal further held that the public interest in disclosure outweighed the potential harm to the third parties. Consequently, the tribunal set aside the Cabinet Office's decision and ordered the disclosure of the information, with certain redactions to protect third-party confidentiality.

The tribunal also made several orders regarding the proceedings. The Cabinet Office was removed as a party, and The Cabinet Office was named as the Respondent. The disclosure of certain confidential material to the Applicant was prohibited, except in specific circumstances. Additionally, certain parts of the tribunal's reasons were not to be published to protect sensitive information. Finally, a copy of the tribunal's reasons, without redaction, was to be released to the Respondent.

Orders

Orders of the court

1. The Respondent’s decision of 3 July 2023 is set aside.

2. Within 7 days the Respondent is to provide the Applicant with a copy of the information sought, re-redacted consistent with this decision.

3. Pursuant to s 44 of the Civil and Administrative Tribunal Act 2013 (CAT Act), the Department and Cabinet is removed as a party and The Cabinet Office is named as the Respondent to the proceedings.

4. With the exception of document at tab 1, pursuant to s 64(d) of the CAT Act, the disclosure to the Applicants of the Respondent’s bundle of confidential evidentiary material (third party consultation) filed 12 September 2023 is prohibited.

5. Except pursuant to order (6) below, the contents of all paragraphs in these reasons marked “[NOT FOR PUBLICATION]” are not to be published or released pursuant to s64(1)(c) of the CAT Act.

6. A copy of these reasons, without redaction, shall be released to the Respondent.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Larsen v The Cabinet Office [2023] NSWCATAD 322
Hearing dates:	13 November 2023
Date of orders:	14 December 2023
Decision date:	14 December 2023
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J D Little, Senior Member
Decision:	1. The Respondent’s decision of 3 July 2023 is set aside. 2. Within 7 days the Respondent is to provide the Applicant with a copy of the information sought, re-redacted consistent with this decision. 3. Pursuant to s 44 of the Civil and Administrative Tribunal Act 2013 (CAT Act), the Department and Cabinet is removed as a party and The Cabinet Office is named as the Respondent to the proceedings. 4. With the exception of document at tab 1, pursuant to s 64(d) of the CAT Act, the disclosure to the Applicants of the Respondent’s bundle of confidential evidentiary material (third party consultation) filed 12 September 2023 is prohibited. 5. Except pursuant to order (6) below, the contents of all paragraphs in these reasons marked “[NOT FOR PUBLICATION]” are not to be published or released pursuant to s64(1)(c) of the CAT Act. 6. A copy of these reasons, without redaction, shall be released to the Respondent.
Catchwords:	ADMINISTRATIVE LAW – access to government information – access applications
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Privacy and Personal Information Protection Act 1998
Cases Cited:	Applicants v Commissioner of Police [2015] NSWCATAD 22 Battin v University of New England [2013] NSWADT 73 Camilleri v Commissioner of Police (NSW) [2013] NSWADT 80 Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [47] Leech v Sydney Water Corporation [2010] NSWADT 298 Nakhl Nasr v State of New South Wales; George Nasr v State Of New South Wales [2007] NSWCA 101 Richards v Commissioner, Department of Corrective Services [2011] NSWADT 98 Selby v Commissioner of Police (NSW) [2013] NSWADT 61 Taylor v Destination NSW [2017] NSWCATAD 272 Transport for NSW v Searle [2018] NSWCATAP 93 Veall v Department of Planning and Environment [2018] NSWCATAD 47
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Derek Larsen (First Applicant) Floyd Larsen (Second Applicant) Department of Premier and Cabinet (Respondent)
Representation:	First Applicant (Self-Represented) Second Applicant (Self-Represented) Crown Solicitor (Respondent)
File Number(s):	2023/00220583
Publication restriction:	1. Except pursuant to (2) below, the contents of all paragraphs in these reasons marked “[NOT FOR PUBLICATION]” are not to be published or released pursuant to s64(1)(c) of the CAT Act. 2. A copy of these reasons, without redaction, shall be released to the Respondent.