O'Grady v Sutherland Shire Council

[2020] NSWCATAD 50

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	O’Grady v Sutherland Shire Council [2020] NSWCATAD 50
Hearing dates:	20 September 2019
Date of orders:	12 February 2020
Decision date:	12 February 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member
Decision:	The decision of the respondent dated 18 March 2019 in respect of Item 10 is affirmed.
Catchwords:	ADMINISTRATIVE LAW – Government Information (Public Access) Act -– GIPA – whether agency obliged to create a new record in response to an access application – discretion balanced with objects of the Act
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Freedom of Information Act 1989 (Repealed) State Records Act 1998
Cases Cited:	Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409 Mannix v Department of Education and Communities [2014] NSWCATAD 35 Project Blue Sky v Australia Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Rod O’Grady (Applicant) Sutherland Shire Council (Respondent)
Representation:	Solicitors: Applicant (Self Represented) K Danysz Solicitor (Respondent)
File Number(s):	2019/00155395
Publication restriction:	Nil

REASONS FOR decision

1. This is an application for administrative review of a decision of the respondent concerning access to government information under the Government Information (Public Access) Act 2009 (the GIPA Act).

Background

2. The applicant (Mr O’Grady) is a resident and ratepayer of the respondent local government area (Sutherland Shire Council). Mr O’Grady has had various dealings with Council professional staff over a number of years in respect of engineering, drainage and related land use matters concerning his land and the land of adjoining landowners.

3. Mr O’Grady has made a number of applications under the GIPA Act for access to information held by Sutherland Shire Council about these land use matters. The central issue relates to stormwater management but other issues arose concerning noise complaints. Some of these applications have been reviewed by the Information Commissioner and at least two matters were previously the subject of administrative review by the Tribunal. The current application concerns a further request for information from Council about these land use matters.

What the GIPA Act provides in respect of Government Information

4. The GIPA Act provides for the proactive release of government information, informal release of government information, as well as the formal release of government information. The Act provides various mechanisms for the operation of these provisions as well as a series of guiding principles / objects.

5. These principles are conveniently summarised in the case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 which provides at [7] - [10]

7. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14.

8.   With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure.

9.   There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure".

10. In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.

6. The GIPA Act has an objects provision at s 3, which includes a reference at s 3 (2) (a) that the legislation be applied so as to further those objects.

3 Object of Act

(1)   In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a)   authorising and encouraging the proactive public release of government information by agencies, and

(b)   giving members of the public an enforceable right to access government information, and

(c)   providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2)   It is the intention of Parliament:

(a)   that this Act be interpreted and applied so as to further the object of this Act, and

(b)   that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

7. The GIPA Act also provides a number of provisions which allow an agency to refuse to provide access not on the basis of the content of the information, but on general administrative provisions. These types of matters arise in these proceedings.

8. In general terms these concern refusing duplicate applications, refusing on the basis that accessing the information would create an unreasonable diversion of resources, and a discretion to determine the form of access and whether a response involves the making of a new record in order to convey the information. The GIPA Act also provides that an agency can refuse to provide the information under the Act, if the information is already available to access.

The GIPA Act application process

9. In January 2019 Mr O’Grady sought information from the respondent under the GIPA Act relating to their holdings concerning stormwater management investigation. The request sought not only documents relating to the land use / stormwater issue but also information concerning who directed officers and where applicable, who drafted responses on behalf of Council officers.

10. On 22 February 2019 Council provided a Notice of Decision under the GIPA Act. There were 17 items identified by Council as responsive to Mr O’Grady’s request. For four of those items Council determined that no information was held. For the remaining 13 items Council refused to grant access to the information relying on two provisions of the GIPA Act concerning the information being already available to an applicant, or a legislative basis to refuse to deal with the request. The specific provisions relied upon to refuse release of the 13 items of information were (as applicable), s 59 (1) (d), s- 60 (1) (b1), and s 75 (2) (c). Those provisions relevantly provide:

59 Decision that information already available to applicant

(1)   An agency can decide that information is already available to an applicant only if the information is:

(a)   …, or

(b)   …, or

(c)   …, or

(d)   available to the applicant as the applicant has already been provided with access to the information and the agency has no reason to believe the information is no longer in the applicant’s possession, or

60 Decision to refuse to deal with application

(1)   An agency may refuse to deal with an access application (in whole or in part) for any of the following reasons (and for no other reason):

(a)   …,

(b)   …,

(b1) the applicant has previously been provided with access to the information concerned under this Act or the Freedom of Information Act 1989,

75 Providing access by creating new record

(1)   ...

(2)   An agency’s obligation to provide access to government information in response to an access application does not require the agency to do any of the following:

(a)   make a new record of information held by the agency,

(b)   update or verify information held by the agency,

(c)   create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency.

(Emphasis added)

11. The net result of this decision was that the applicant was not provided with any information. On 25 February 2019 Mr O’Grady sought an Internal Review by Council of the decision to refuse to provide access. That Review (on 18 March 2019) resulted in a re-characterisation of the majority of the findings for each of the 17 items of information. Four items were now released in full (Items 1,2,5 and 6) and one item partially released (Item 11). The remaining items were not provided to the applicant either on the initial grounds, or a further ground such as the Item (on review) being classified as outside of the scope of the application and therefore excluded.

12. Mr O’Grady then applied for an External Review by the Information Commissioner on 21 March 2019. That request was limited to four Items (7) (8) (10) and (11). It is appropriate to set out those items below specifically as these matters also concern this administrative review.

7.   I request a record of the written report of the ‘visit’ by the relevant officer/s (ref:8/1/19), CR18-301708 Mr Barber’s email 5/12/18, para 3)

8.   Should no record exist for the ‘visit’ in Item 7, then I request the record supporting Mr Barber’s conclusion: there was no ‘problematic overland flow.’

…

10.   Should no record exist for Item 9, then I request Mr Sherrie and Mr Barber both be requested to create a record to confirm if either so acted as described in Item 9.

11.   I request records of the action taken by Mr Barber to ensure his commitment was fulfilled (ref: 29/4/1, CR-15-008526, para 3), ‘…we will contact you to make a time to inspect your property during a prolonged rainfall event.’ (Note heavy rain occurred from 3/6/16-6/6/16 however I was not contacted (ref: my 6/6/16 letter, CR15-008526, specifically paras 3 & 4).

13. The Information Commission provided a report of the External Review on 29 April 2019. That report (in summary) concluded that the agency was justified in making the Internal Review decision on the four Items in the manner they had, and as a result the Information Commissioner did not make any recommendations arising from the External Review.

14. On 17 May 2019 Mr O’Grady applied for administrative review to the Tribunal.

What the respondent decided

15. In respect of the four items, which were referred to the Information Commissioner, the Council had stated the following in their Notice of Decision (Internal Review) dated 18 March 2019.

• Item 7: Refused 60 (1) (b1) Relevant Public Interest consideration(s) against disclosure: Notice of Decision dated 16/01/2017 under GIPA CR 16-149397 – Schedule of Documents Item 1.

• Item 8: Not applicable – See 7 above. (Inferred as s 60 (1) (b1) relied upon).

• Item 10: Refused S75 (2) (c ) Exercise right not to create a new record.

• Item 11. Release (see Item 5 above). Refused 60 (1) (b1) Notice of Decision dated 16/01/2017 under GIPA CR 16-149397 – Schedule of Documents Item 1.

It appears that some of these references are the prior GIPA determinations relating to the information sought in items 7 and 11. These determinations were not before the Tribunal.

Jurisdiction

16. The decision under review is a reviewable decision in accordance with s 80 (d) (e) and (f) of the GIPA Act. The Tribunal's jurisdiction is enlivened by s 100 of the GIPA Act. The Tribunal notes that the application for review has been received within time.

Administrative Review

17. The Tribunal’s function on review under section 63 of the Administrative Decisions Review Act 1997 is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

The hearing

18. The matter was heard on 20 September 2019. As the applicant was not legally represented the practice and procedure of the Tribunal was explained and the broad provisions of the GIPA Act were outlined in the hearing.(s 38 (5) Civil and Administrative Tribunal Act 2013 ‘the NCAT Act’).

19. Mr O’Grady told the Tribunal that he was not able to properly prepare his case as document (Item) 12 seeks to show problems he experienced with contacting Ms Lewis. Item 12 is described as:

‘records of the meetings, emails or directives issued by General Manager Rayner to give effect to this commitment’ (to contact Mr O’Grady to inspect the property during a prolonged rainfall incident).

The Council decision advised that there was no information of this nature held by Council, i.e. no records existed. Mr O’Grady said that these records would show that he had tried to have Council engage over this commitment.

20. Mr O’Grady also sought to tender three items into evidence, the substantive one being a submission which attached documents which Mr O’Grady relied on to establish his case that records should be made available to him in response to the application. All items were received without objection.

21. Mr O’Grady submitted that there might be a conflict with Ms Lewis’s evidence (event though no formal objection was raised) as she was the records manager at the time that he made earlier complaints and requests to Council in the period 2013-2015. The main focus of Mr O’Grady’s submissions concerns a view that Council was not complying with their obligations in respect of compliance, governance and record keeping in general and specific obligations under the GIPA Act and the State Records Act 1998.

22. Mr O’Grady tendered a copy of a photograph (received without objection) as Exhibit ‘A-3’. The photo depicted matters relating to the background issue (drainage and land use compliance), which were the motivation for the GIPA applications and earlier complaints. (s-55 of the GIPA Act personal factors).

23. Council tendered an Affidavit of Nicole Lewis sworn 26 August 2019 which was received following the deletion of one word from paragraph [4], otherwise without objection. Also received were accompanying documents under s 58 of the Administrative Decisions ReviewAct 1997, being the documents which the respondent believes are relevant to the decision under review.

24. Ms Lewis was the author of the Internal Review which is essentially the decision under review in these administrative review proceedings.

25. The affidavit of Ms Lewis referred to the records of the inspections of Mr O’Grady’s property by Council officers on 7 June 2016. That inspection is recorded in Council record CR15-008526 and Ms Lewis states that a copy of this record was given to Mr O’Grady in January 2017.

26. In respect of Item 7 Ms Lewis states that her understanding is that the information relates to the inspection conducted at Mr O’Grady’s premises on 7 June 2016. As Mr O’Grady had previously been provided with the record of that matter (CR15-008526) she had declined to deal with the matter further under the relevant provision of the GIPA Act. Ms Lewis confirmed that there was no other record of that visit held by Council.

27. In respect of Item 8, Ms Lewis stated that ‘there was a record of the “visit” and that record has already been provided to Mr O’Grady. Thus in my Notice of Decision I agreed that the request was not applicable.’ Ms Lewis stated in her affidavit that she spoke to Mr Peter Barber (Director Shire Planning) about an email he wrote on 5 December 2018. (the email included a statement that there was no ‘problematic overland flow’ concerning the drainage issue). Her evidence was that the only records Mr Barber relied upon to write that email was the existing record (CR15-008526).

28. In respect of Item 10 Ms Lewis gave evidence that, as there was no record located concerning Item 9, (a record of who advised Mayor Johns of the matters contained at [4] of his 21/9/15 letter which is annexure ‘H’ to the affidavit), then it was open to Council to refuse to create a new record. Ms Lewis deposed that on review, she agreed with the initial decision of Council not to create a record to capture the matters otherwise referred to in the application (i.e. to make a record of who gave Mayor Johns the information which formed the basis of the information conveyed at paragraph [4] of his 21 September 2016 letter).

29. In respect of Item 11 Ms Lewis stated that following her Internal Review she provided Mr O’Grady with a further document called ‘Action Reference 2668954’ in response to Item 11. This document contains the following information:

Action Type Action Required

Details Guy- the next step in this matter is for you or one of your team to inspect the site during a rain event that is likely to generate runoff. See attached records and comments for more info. Will leave this with you.

Action Required Yes Action By Guy Amos

Recorded By Peter Barber Recorded On 17-Jun-2015 Date Sent 17-Jun-2015

Due On 19-Jul-2015

30. Ms Lewis concluded that:

There is no further record which falls within the scope of Item 11 and all the other relevant in formation has already been provided to Mr O’Grady. Thus part of the request has been correctly refused by Council under section 60 (1) (b1) of the GIPA Act.

31. Ms Lewis was not called and Mr O’Grady did not require her for cross-examination at hearing. Except to the amendment to paragraph [4] of Ms Lewis’s affidavit no objections were made to the tender of material by either party although the Council did submit that some of Mr O’Grady’s evidence and submissions should be considered and given limited weight due to relevance. This submission predominantly concerned Mr O’Grady’s focus on matters concerning improper conduct and application of the GIPA Act by Council and its officers.

32. During the hearing the evidence of the parties was considered and both parties made oral submissions in respect of the matter. Because Mr O’Grady sought to ventilate the conduct issues concerning Council, a significant amount of time was expended in outlining what the scope of the jurisdiction (in first instance) of the Tribunal was, and that it was concerned with the decision in respect of the information. It was not deciding the motivations proven or otherwise for all aspects of the decision, and it was conveyed that this was not something that the Tribunal could adjudicate on.

33. As a result of this process and the examination of aspects of Mr O’Grady’s previous GIPA Act applications concerning the land use / drainage issue, the Tribunal was able to facilitate a significant narrowing of the issues in dispute. The number of items of information was reduced to four items, and then by the end of the time allocated for the hearing reduced further to one item (Item 10). As a result the Tribunal only now needs to decide Item 10, and whether the Council’s decision was the correct and preferable decision having regard to the evidence and the law.

Further information provided after hearing

34. After the Tribunal reserved its decision, Mr O’Grady filed and served a further document (by way of a submission / assertion) to the Tribunal. Mr O’Grady again raised compliance / improper conduct matters concerning the handling of various GIPA applications including this matter, and also sought to reopen a matter that had been conceded at the hearing.

35. The Council replied noting that the concessions made during the hearing were binding and the matter had proceeded and been reserved on that basis. In addition the Council objected to any of the improper conduct assertions being ventilated and noted that no orders were made to file and serve further material after the hearing.

36. Mr O’Grady responded in January 2020 reiterating his concerns and disputing the Council’s reply. I decline to deal with these matters as they were not foreshadowed when the matter was reserved, and in some way they have been consistently aired by Mr O’Grady and require brief comment solely arising from his submissions at hearing. On that basis some similar issues will be touched upon in these reasons, but it would be unfair to at this late stage reopen the matter.

37. In any event it would appear that much of those matters raised post hearing by Mr O’Grady (concerning improper conduct) in the current context are beyond jurisdiction in the application before the Tribunal and therefore are misconceived and may fall within the provisions of s 55 (1) (b) of the NCAT Act. These matters are also referred to at [32] above.

38. In respect of the substantive matters that the Tribunal must decide, I note that in these proceedings the onus rests with the respondent to establish that the decision under review was the correct and preferable decision. (s 105 (1) ).

Consideration

39. Section 75 of the GIPA Act provides:

75 Providing access by creating new record

(1)   An agency is not prevented from providing access in response to an access application to government information held by the agency by making and providing access to a new record of that information.

(2)   An agency’s obligation to provide access to government information in response to an access application does not require the agency to do any of the following:

(a)   make a new record of information held by the agency,

(b)   update or verify information held by the agency,

(c)   create new information, or produce a new record of information, by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency.

40. Whilst s 75 (1) makes provision under the GIPA Act to bring information into existence (by creating a new record responsive to a GIPA application), it does not make this a mandatory requirement wherever applicable. In my view what the section does is depart from the former Freedom of Information Act 1989 (the FOI Act), by allowing an agency to create a new record to ‘capture’ the information in issue.

41. This provision was not available under the former FOI Act, and the GIPA Act sought to facilitate access to information by allowing a new record to be created, where information exists and presumably the new record would facilitate the receipt of the information.

42. Such a record could facilitate the provision of information held in a language other than English, including code, computer data and other binary information or script. This would have the effect of making the information meaningful and useable which would appear to be consistent with the objects of the GIPA Act.

43. Consistent with s 3 (1) useable information would facilitate a system of responsible and representative democratic Government that is open accountable, fair and effective.

44. However the GIPA Act provides in s 75 (2) that the obligation to provide access to the information does not require the agency to create a new record of the information or create new information.

45. I note that in written submissions Council stated the following on this issue:

13.   Council maintains its position which was supported by the IPC that Council is not required to create new information or produce a new record of information by deduction, inference or calculation from information held by the agency or by any other use or application of information held by the agency to respond to Item 10 and such a decision is within its discretion.

46. I observe that the statute seeks to facilitate the release of government information, but balanced with facilitating release in other instances (such as s75) the statute clearly provides a discretion which allows the agency to decide whether to facilitate released by creating a new record.

47. A general authority for the correct approach to take in instances concerning statutory interpretation arises in the case of Project Blue Sky v Australia Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355. In that Case Brennan CJ noted the following:

69.   The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.

70.   A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

48. In my view the language of the specific provision in the statute (s 75) is clear. The statute provides the agency with discretion to perform a positive act (creating a record) or to decline and not act in creating a record of the information. If an agency decides to create a new record, then the section is applied to be ‘harmonious’ (as stated in Blue Sky) and the section achieves the same goal as s 3 . However if the discretion is applied in the negative, (not to create a new record) on my view there is no inconsistency. That is because the GIPA Act provides for a balancing process when considerations about release of government information arise.

49. In such circumstances, the intention of the statute remains clear. There are many provisions of the GIPA Act which seek to limit access to government information, and whilst s 3 (1) (c) provides an out for withholding information on the basis of its content, s 3 (2) uses the language ‘as far as possible’ when referring to the exercise of discretions under the GIPA Act. These provisions are relevantly:

3 Object of Act

(1)   …

(a)   , and

(b)   , and

(c)   providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2)   It is the intention of Parliament:

(a)   that this Act be interpreted and applied so as to further the object of this Act, and

(b)   that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.

(Emphasis added)

50. On this basis the purpose of the statute was to progress the matter beyond the limitations of the former Freedom of Information Act but not to bind or obligate an agency to enact the positive provision (of creating a new record). The intention of the legislature seemed to be to facilitate provision of information beyond the limitations of the FOI Act, but not so far as the agency was required by legislative force to create a new record in every instance. The discretion remains with the agency.

51. I envisage that in examples such as those given at [42] above, an agency would consider this provision positively, as it would enable information that it held (in a data form) to become usable thereby further facilitating the objects in s 3.

52. The meaning of s 75 is in my view abundantly clear. I reiterate my view that the application of the provision is part of the general balancing process and s 3 like s 75 is drafted to contemplate withholding information and the application of statutory discretions under the GIPA Act. An agency might create a new record, or on balance decide not to create a new record to capture the information.

53. On this basis it was open to the Council to decline to act under the provision in s75 consistent with the statutory discretion conferred on agencies by the GIPA Act and I so find.

54. As the Council has exercised statutory discretion, consistent with the provision of the legislation, I can see no basis on review as to why the decision should be overturned by this Tribunal. The decision has been made according to law and the reasons that Mr O’Grady seeks to have the Tribunal review and set aside the decision relate more to matters concerning allegations addressing good administrative conduct (in his view absent) rather than any matters that the decision in Item 10 was without lawful foundation. As explained at some length at hearing, any remedy that Mr O’Grady seeks about the conduct matters are beyond the scope of this review, and at this stage beyond the jurisdiction of the Tribunal.

55. On the basis of the finding that I have made above, there is no need to consider the matter further.

Conclusion

56. The correct and preferable decision is that in respect of the information in Item 10, the decision of the respondent will be affirmed.

57. I therefore make the following order:

Orders

1. The decision of the respondent dated 18 March 2019 in respect of Item 10 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: 12 February 2020