Saggers v Environment Protection Authority

Case [2013] NSWADT 109

Administrative Decisions Tribunal


New South Wales

Medium Neutral Citation: Saggers v Environment Protection Authority [2013] NSWADT 109
Hearing dates:8, 23 November 2012
Decision date: 20 May 2013
Jurisdiction:General Division
Before: S Montgomery, Judicial Member
Decision:

1. The decision under review is affirmed.

2. The application for a referral pursuant to section 112 of the Government Information (Public Access) Act 2009 is refused

Catchwords: Access to government information - access application - reasonable searches - section 112 referral
Legislation Cited: Administrative Decisions Tribunal Act 1997
Government Information (Public Access) Act 2009
Environment Planning & Assessment Act 1979
Protection of the Environment Operations Act 1997
Cases Cited: Camilleri v Commissioner of NSW Police Force [2012] NSWADT 5
Chant v Gwydir Shire Council [2012] NSWADT 20.
Cianfrano v Director General Department of Commerce and Anor (No 2) [2006] NSWADT 195
Crewdson v Central Sydney AHS [2002] NSWCA 345
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
O'Hara v North Sydney Council [2005] NSWADT 100.
Turner v Corrective Services NSW [2013] NSWADT 39
Category:Principal judgment
Parties: Colin Saggers (Applicant)
Environment Protection Authority (Respondent)
Representation: C Saggers (Applicant in person)
R Fox, Environment Protection Authority (Respondent)
File Number(s):123120

reasons for decision

  1. GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): This is an application for external review of the determination by the Environment Protection Authority ("the Respondent") in relation to an access application brought by Mr Saggers ("the Applicant") under the Government Information (Public Access) Act 2009 ("the GIPA Act"). The officer who made the determination was the Respondent's Right to Information/Privacy Officer, Ms Sylvia Lowe.

  1. The Applicant's access application sought documents concerning amendment of an Environment Protection Licence ("the licence") issued to Metropolitan Demolitions and Recycling Pty Ltd, St Peters ("MDR"). The licence relates to a concrete recycling plant operated by MDR.

  1. The access application requested:

Those entire documents both internal & external held by the agency that will have been created so as to enable the agency to amend section L5.2 MANAGEMENT OF STOCKPILES from reading "The height of any stockpile of processed or unprocessed waste must not exceed the height of the adjacent boundary fences" to read "The height of any stockpile of processed or unprocessed waste must not exceed the height of the Princes Highway boundary fence".

  1. The Applicant's request was subsequently clarified in correspondence between him and Ms Lowe. The initial narrow request was broadened by that correspondence to include information created under section 58(6) of the Protection of the Environment Operations Act 1997 ("the POEO Act") in relation to the variation of the licence. In a letter to Ms Lowe he wrote:

on any reading there are no internal working documents that demonstrate that the Five Year Review took into account any factor other than the satisfying of the licencee's concerns that they were operating in breech of their existing licence. There are no documents that relate as to how such a change to suit the licencee's…

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AGLC
Saggers v Environment Protection Authority [2013] NSWADT 109
Case
[2013] NSWADT 109
Decision Date

CaseChat Overview and Summary

The matter of Saggers v Environment Protection Authority involved an applicant seeking access to certain government documents under the Government Information (Public Access) Act 2009. The Environment Protection Authority had denied the applicant's request, prompting the applicant to lodge an application for review with the Civil and Administrative Tribunal of New South Wales. Subsequently, the applicant applied for a referral to the Information Commissioner under section 112 of the Act. The primary issues before the tribunal were whether the decision to deny access to the requested documents was lawful and whether the tribunal should refer the matter to the Information Commissioner.

The tribunal examined the nature of the documents and the extent to which the applicant had conducted reasonable searches for the information. It considered the public interest factors relevant to the disclosure of the documents and the statutory obligations of the Environment Protection Authority under the Act. The tribunal concluded that the authority had exercised its discretion reasonably and appropriately, having regard to the public interest considerations and the statutory framework. Furthermore, the tribunal found that the applicant's searches were not sufficiently comprehensive to warrant a referral under section 112 of the Act.

Accordingly, the tribunal affirmed the decision of the Environment Protection Authority not to release the requested documents and dismissed the application for a referral to the Information Commissioner. The tribunal determined that the authority had fulfilled its obligations under the Act and that there were no grounds for the tribunal to intervene further in the matter. The decision underscores the importance of conducting thorough searches and considering relevant public interest factors in access to government information.

Orders

Orders of the court

1. The decision under review is affirmed.

2. The application for a referral pursuant to section 112 of the Government Information (Public Access) Act 2009 is refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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