Sethi v New South Wales Crime Commission - [2024] NSWCATAD 21

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Sethi v New South Wales Crime Commission [2024] NSWCATAD 21
Hearing dates: 12 December 2023
Date of orders: 24 January 2024
Decision date: 24 January 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: P French, Senior Member
Decision:
1. The applicant’s application to adjourn the hearing is refused.
2. The applicant’s application to summons Mr Michael Barnes, Commissioner, NSW Crime Commission, as a witness is refused.
3. The applicant’s application for a non-publication order is refused.
4. The agency’s internal review decision dated 13 March 2023 is affirmed.
5. The agency’s internal review decision dated 28 March 2023 is affirmed.

Catchwords:
ADMINISTRATIVE REVIEW – Government Information (Public Access) Act 2009 (NSW) – whether information sought is ‘excluded information’ – whether information is not held by the agency
PRACTICE AND PROCEDURE – whether hearing should be adjourned – whether the Registrar should be directed to issue a Summons compelling a person to attend the hearing to give evidence – whether a non-publication order should be made.

Legislation Cited:
Administrative Decisions Tribunal Act 1997 (NSW), s 75
Administrative Decisions Review Act 1997 (NSW), s 55, 58, 63
Crime Commission Act 2012 (NSW), ss 7, 10,11, 11A, 12, 13, 49, 50, 59
Government Information (Public Access) Act 2009 (NSW), ss 3, 5, 9, 12, 13, 14, 43, 51, 53, 58, 80, 100, 101, 105
Law Enforcement Conduct Commission Act 2016 (NSW)

Cases Cited:
AHB v NSW Trustee and Guardian [2014] NSWCA 40
AON Risk Services Australia Limited v Australian National University [2009] HCA 27
Beregi v Department of Planning, Industry and Environment [2020] NSWCATAP 185
Christopher v Independent Commission Against Corruption [2021] NSWCATAD 256
Coppock v Willoughby City Council [2021] NSWCATAD 166
DLH v Nationwide News Pty Ltd [2018] NSWCATAD 92
DNM v NSW Ombudsman [2019] NSWCATAP 7
Ghazal v Masterton Homes Pty Ltd [2018] NSWCATAP 227
Icare NSW v Webb [2023] NSWCATAP 192
Klaric v Commissioner for Police [2020] NSWCATAP 153
Nobarani v Maricone [2018] HCA 36
Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130
Rawan Arraf v NSW Crime Commission [2022] NSWCATAD 81
Ritson v Commissioner of Police [No. 2] [2022] NSWCATAD 89
Ritson v Commissioner of Police [2022] NSWCATAP 223
Robertson v Deputy Secretary Local Government, Planning and Policy [2023] NSWCATAP 88
Sinclair v Psychology Council [2017] NSWCATAD 8
State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69
Travelex Ltd v Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510
Watson v NSW Trustee and Guardian [2015] NSWCATAD 139
Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

Texts Cited:
Nil

Category: Principal judgment
Parties:
Akhil Sethi (Applicant)
New South Wales Crime Commission (Respondent)
Representation:
Applicant (Self-represented)
NSW Crown Solicitor (Respondent)

File Number(s): 2023/00235043
Publication restriction: Nil

REASONS FOR DECISION

Introduction

This is an application by Akhil Sethi (the applicant) under section 55 of the Administrative Decisions Review Act 1997 (ADR Act) for an administrative review of two internal review decisions made by delegates of the New South Wales Crime Commission (the agency) on 13 March 2023 and 28 April 2023 under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act, the Act) (the reviewable decisions) in relation to an access application he lodged with the agency on 15 February 2023 (access application). By those decisions the agency determined that the access application was invalid to the extent that it sought access to ‘excluded information’ held by the agency, and that it did not otherwise hold any information that was responsive to the access application. This application was made to the Tribunal on 24 July 2023 (the application).
For the reasons set out following I am satisfied that the reviewable decisions are correct. I have therefore affirmed these decisions.

Procedural history

The application came before the Tribunal, differently constituted, for a Case Conference on 29 August 2023. The dispute could not be resolved at that time. Consequently, the Tribunal adjourned the proceedings for determination and issued directions to the parties for the filing and exchange documents and submissions that they intended to rely upon in relation to that determination. Additionally, the Tribunal made several notes to those directions, which included, relevantly, the following note:

...

(b) During the course of the case conference the applicant indicated that he sought an order under s 64 of the Civil and Administrative Tribunal Act 2013. As no formal application (including any evidence and written submissions setting out the grounds on which such an application is made) this is not a matter dealt with during the case conference. However, the Tribunal did note that:

- s 49(1) of the Civil and Administrative Tribunal Act provided that a hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise;

- it was open to the applicant to make an application for an order under s 64 of that Act at any time. However, having regard to the guiding principle in s 36(1) of that Act, in the event that the applicant does seek to make such an application for an order under s 64, that application should be made well before the hearing date so as to give the respondent an opportunity to respond to that application and time is not taken up to deal with such an application at the time of the hearing.

Material considered

In reaching my determination I have considered the following material:

Applicant

Administrative review application filed on 24 July 2023 and Annexures, being copies of:

the agency’s initial decision concerning the access application dated 20 February 2023,

the applicant’s first internal review application dated 23 February 2023,

a letter dated 6 March 2023 to the agency’s internal reviewer headed “[a]dditional aspects under Reasons for review”, which annexes a “[v]oluntary statement to NSW Police” in relation to a complaint made by the applicant to NSW Police on 2 February 2023,

the agency’s first internal review decision dated 13 March 2023,

the applicant’s second internal review application dated 3 April 2023,

an external review application lodged with the Information Commissioner on 3 April 2023,

preliminary correspondence from the Information and Privacy Commission to the applicant dated 13 April 2023 and 24 April 2023 concerning his external review application,

the agency’s second internal review decision dated 28 April 2023,

correspondence from the applicant to the Information Commissioner dated 10 May 2023, in which he requests that the external review encompass the agency’s second internal review decision,

the Information and Privacy Commissions external ‘Review report’ dated 26 June 2023 and covering letter to that report.

Affidavit of Akhil Sethi dated 14 November 2023 (filed 12 December 2023 following a refusal by the Registry to accept electronic filing on 14 November 2023),

‘List of witnesses for 12 December 2023 Hearing’ filed 12 December 2023,

Agency

s 58 bundle of documents filed on 25 September 2023 (these documents are the same as those annexed to the applicant’s administrative review application),
‘Submissions of Respondent’ filed 25 September 2023,
Affidavit of Nathan Leivesley, Acting Senior Lawyer, New South Wales Crime Commission, filed 25 September 2023,
‘Summary of Respondent’s Argument’ filed on 5 December 2023.

Hearing

The hearing was conducted in person. Mr Sethi attended the hearing in person and gave oral evidence in his own cause under a solemn promise to tell the truth. Ms S Johnson, solicitor, Office of the NSW Crown Solicitor attended the hearing on behalf the agency. The agency called as a witness Mr Nathan Leivesley, Acting Senior Lawyer of the agency who gave oral evidence under a solemn promise to tell the truth. The parties had the opportunity to present their respective cases, to ask each other questions and to make final submissions to the Tribunal.

Preliminary issues

Application for adjournment

By email to the Registrar at 2:37pm on 11 December 2023 the applicant requested an adjournment of the hearing at 10:00am on 12 December 2023 to 19 February 2024 or later. As that request was received less than 1 day before the hearing, it was referred to the Tribunal, as presently constituted, for determination as a preliminary issue at the hearing. The applicant pressed his adjournment request at the start of the hearing. After hearing from the parties, I refused the application for the reasons set out following.
In his 11 December 2023 email, the applicant cited the following reasons in support of his adjournment request, which he elaborated on at the hearing:

…

Applicant is also considering an application pursuant to s 64 of the act prior to the hearing of the matter which he hasn’t been able to consider as yet.

Further grounds to have the matter relisted are:

Sound Recording for case conference is still pending.
A confirmation for appearance of Information Commissioner at the hearing is still pending.
Applicant is self-represented and has been involved in a number of other proceedings across jurisdictions which has consumed his time.
The application is filed under GIPA Act and there is no urgency to have this dealt with tomorrow i.e. on 12 December 2023.

…

The agency opposed the applicant’s adjournment request. In summary, it was submitted that the agency was in attendance and ready to proceed, that the applicant had not identified sufficient grounds to justify an adjournment, and that to any extent that the applicant was not ready for the hearing that was a situation of his own making.
The Tribunal’s power to adjourn proceedings is found in s 51 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). It is in the form of a discretion, which is unfettered. However, that discretion must be exercised judicially having regard to the objects of the NCAT Act and the procedural rules: Ghazal v Masterton Homes Pty Ltd [2018] NSWCATAP 227 at [54] (Ghazal). Notable considerations in this regard are:

NCAT’s ‘guiding principle’, which is the just, quick and cheap resolution of the real issues in dispute, which must be applied in all aspects of practice and procedure: s 36(1) of the NCAT Act,

the related principle of ‘proportionality’ in the allocation of party and public resources to the resolution of disputes which requires that these are commensurate with the importance and complexity of the dispute: s 36(4) of the NCAT Act,

the Tribunal’s obligation to ensure that proceedings are conducted in a manner which is procedurally fair to the parties: s 38(2) of the NCAT Act, and

the Tribunal’s obligation to take such measures as are reasonably practicable to ensure that the parties to proceedings have a reasonable opportunity to be heard: s38(5)(c) of the NCAT Act.

Additionally, or relatedly, the following principles relevant to the exercise of discretion in this case may be distilled from the caselaw:

it is necessary for the applicant to establish a good reason for the adjournment bearing in mind that this administrative review was fixed for hearing on 28 August 2023 and its presence in the list has prevented other matters from being listed on this hearing date: cf AHB v NSW Trustee and Guardian [2014] NSWCA 40 at [6],

there is a public interest in the efficient use of NCAT’s resources: cf AON Risk Services Australia Limited v Australian National University [2009] HCA 27 at [27],

matters should almost always proceed on the date fixed for hearing; an application for adjournment should be an exception and not the ordinary course: Ghazal at [54],

where the party seeking the adjournment has not complied with an order of the Tribunal, an adequate explanation is called for and its absence weighs heavily against an adjournment being granted: Ghazal at [54],

the effect of the adjournment on the opposing party must be considered: Ghazal at [54].

With respect to the first ground for adjournment cited by the applicant, it must be accepted that he could have made an application for a non-publication order pursuant to s 64 of the NCAT Act at the time he made his administrative review application on 24 July 2023 or at any time thereafter. The issue was raised at the Case Conference conducted in this proceeding on 28 August 2023. At that Case Conference the Tribunal put the applicant on notice that he should file any such application well before the final hearing so as to give the agency an opportunity to respond to it and so that time would not be taken up at the final hearing dealing with such an application. As set out above, that warning is recorded in the notes to the directions made by the Tribunal at the conclusion of the Case Conference.
The applicant did not heed that warning. When asked why this was the case the applicant adverted to proceedings he has before the Supreme Court which he said has taken up his time and attention. He also indicated that he was still waiting to obtain a copy of the sound recording of the Case Conference. I did not consider either explanation satisfactory.
Assuming for the benefit of the applicant that he is involved in litigation in another place, there is no evidence of conflicting or competing pre-trial timetables or hearing dates. The work involved in making a miscellaneous application for a non-publication order is not substantial. The applicant is the moving party in the administrative review. Within reason, he must be capable of conducting the proceedings, including by making any application for a non-publication order, in a timely way and in accordance with the opportunity he is afforded. From an objective point of view, I could not ascertain any rational basis on which the applicant required the Case Conference sound recording before he could make such an application.
In any event, out of an abundance of caution, I indicated to the applicant that I would hear any application he wished to make for a non-publication order at the hearing. I was thus not satisfied that this was a satisfactory basis upon which the hearing should be adjourned.
The applicant also cited his desire to obtain a sound recording of the Case Conference conducted on 28 August 2023 as an independent ground for an adjournment. When asked to explain why he required this, the applicant said that what was discussed at the Case Conference was relevant to the submissions he wished to make in the administrative review.
I was not satisfied that this ground justified an adjournment being granted. The outcomes of the Case Conference are recorded in the Order issued by the Tribunal on 29 August 2023. They are in the nature of procedural directions only. The applicant could have applied to the Registrar for the sound recording at any time following the Case Conference but did not do so until 11 December 2023, less than one day before the hearing. To any extent that his lack of recourse to the sound recording is a predicament, it is therefore one of his own making. As I have said already, the applicant is the moving party in this administrative review. Within reason he must be capable of conducting his case in a timely way within the time constraints of the review.
The third ground for adjournment cited by the applicant related to the participation of the Information Commissioner in the proceedings. The applicant submitted that ‘confirmation’ of her participation was ‘still pending’. He submitted that sought assistance from the Information Commissioner in the administrative review and that, consequently, proceeding in her absence would be to his disadvantage and therefore procedurally unfair.
Section 104(1) of the GIPA Act confers on the Information Commissioner a right to appear and be heard in any proceedings before NCAT in relation to an administrative review conducted Part 5, Division 4 of that Act. This is such a proceeding. However, while the GIPA Act permits the Information Commissioner’s participation in the proceedings, it does not require it.
It was apparent from the Tribunal’s file that Notices of both the Case Conference conducted on 28 August 2023 and the Hearing on 12 December 2023 had been sent to the Information Commissioner by post and by email. The Information Commissioner did not participate in the Case Conference. Additionally, there was no indication on the Tribunal file that the Information Commissioner had ever expressed any intention of participating in the proceedings. Both the agency’s reviewable decisions had been the subject of an external review by the Information Commissioner. That review concluded that the agency’s decisions were justified. The reviewer made no recommendations to the agency as a result of that review.
Having regard to these matters I was not satisfied that a decision regarding the Information Commissioner’s participation in the proceedings was ‘still pending’. I was satisfied that the Information Commissioner had not elected to appear and be heard. Consequently, this ground for an adjournment was not established.
The fourth ground for an adjournment cited by the applicant was the absence of Mr Michael Barnes, Commissioner, New South Wales Crime Commission, from the hearing. The applicant submitted that it was essential to his case that Mr Barnes be available to him for cross-examination. I note that the applicant had not attempted, prior to the hearing, to compel Mr Barnes’ attendance as a witness under Summons. In any event, later in these reasons I explain that I was not satisfied that Mr Barnes should be compelled as a witness. It follows from this that this ground for an adjournment was not established.
The fifth ground for an adjournment cited by the applicant is that he is self-represented and is also involved in litigation elsewhere which has consumed his time. As I have said above, assuming the applicant is involved in litigation elsewhere, there is no evidence before me of conflicting or competing pre-trial timetables or hearings.
The applicant failed to adhere to the compliance date (23 October 2023) for the filing of his evidence. It was filed on 12 December 2023, although it appears to have been exchanged electronically with the agency’s representative on or about 14 November 2023. That made it impossible for the agency to comply with its’ compliance date (13 November 2023) for the filing of evidence in reply. However, the agency filed and served its ‘summary of legal arguments’ in response to that direction on 5 December 2023. Although this was late according to the timetable, it was still a week before the hearing. If this delay was to the applicant’s disadvantage, it was a circumstance of his own making. I note that the agency did not object to the applicant’s reliance upon his Affidavit filed 12 December 2023.
Having regard to these matters I was satisfied that the procedural directions made by the Tribunal on 28 August 2023 provided the applicant with a reasonable opportunity to file and serve the evidence and submissions he intended to rely on for the administrative review. Those directions were complied with late, but nevertheless, this material was before the Tribunal for the review without objection by the agency. The agency’s summary of legal arguments was filed and served late, at least in part as a consequence of the applicant’s non-compliance, but it is really only a summary of submissions outlined in greater detail in the agency’s submissions filed and served on 25 September 2023. These submissions also simply reiterate the grounds for the agency’s internal review decisions, which are set out in those decisions. The applicant therefore could not reasonably be taken by surprise by anything in the agency’s 5 December 2023 summary of legal arguments. I was thus also satisfied that there was no procedural unfairness to the applicant in proceeding to conduct the administrative review on the basis of this material.

It follows from these conclusions that I was not satisfied that the applicant’s involvement in litigation elsewhere was a circumstance that justified an adjournment of the administrative review. In any event a party who is unrepresented has no special privilege over a party who is represented in complying with directions for the preparation of that party’s case: Nobarani v Maricone [2018] HCA 36 at [47]. As I have said, within reason, the applicant must be capable of conducting the proceedings he has instituted within the time constraints for the review.
The final reason cited by the applicant in support of his adjournment request is the non-urgent nature of GIPA Act proceedings. This ground must be rejected outright. This hearing was set down on 28 August 2023. It has occupied NCAT’s hearing schedule since that time, which involved the allocation of a Hearing Room, Senior Member to conduct the review, Court officer, as well as Registry staff time preparing for the hearing. The deployment of these resources to this administrative review meant that they could not be allocated to any other case. Adjournment of the hearing at the outset of the hearing would result in these resources being wasted. To suggest that an administrative review can be adjourned simply because it is not urgent is to trivialise the public resources that are involved in the conduct of such a review. It is also to disregard the resources the agency has deployed for the conduct of the review which is a public expense that would be wasted if the hearing did not proceed.
It was for these reasons that I refused the applicant’s adjournment request.

Application for summons

As I have set out above, on 12 December 2023, just prior to the hearing, the applicant filed a document headed ‘[l]ist of witnesses for 12 December 2023’. That document is dated 6 December 2023 and it appears to have been served on the agency electronically on or about that date. That document includes the following statement:

Applicant confirms that the below witnesses are required for the cross-examination at the hearing scheduled for the matter on 12 December 2023 …

Two names are then set out, being Mr Michael Barnes – Commissioner, NSW Crime Commission, and Mr Nathan Leivesley, Solicitor, NSW Crime Commission.
No issue arises in relation to Mr Leivesley. The agency relies on an Affidavit given by him dated 21 September 2023 and he was available at the hearing to give evidence.
However, the agency did not rely upon Mr Barnes as a witness, and Ms Johnson for the agency indicated that Mr Barnes would not attend the hearing unless compelled to do so by the Tribunal.
As a consequence of this stance, the applicant indicated that he would make an application for a Summons to be issued to compel Mr Barnes’ attendance as a witness. Over the hearing lunch recess the applicant completed an ‘[a]pplication for summons to be issued’ which he gave to the agency’s representative and the Tribunal at the resumption of the hearing.
It is convenient to identify the grounds relied on by the applicant in support of this application by reference to what he stated in the section of the application form headed ‘reasons for request’:

Issue in dispute is about the Disseminations released by the New South Wales Crime Commission to various other organisations and the information held by the commission which was requested in Applicant’s application under GIPA Act. The issue is also about the conduct of the agency and any serious wrongdoing by the agency. A cross-examination is required of Head of Agency to ascertain the responsibilities and any breach of it pursuant to this access information request. The witness cross-examination will also assist in substantiating that:

(a) The information sought is NOT an excluded information of the agency.

(b) if the agency has an involvement in an unlawful and continuous surveillance on the Applicant and have involved in serious wrongdoing towards the Applicant.

(c) This will also uncover any involvement of the agency in a conspiracy including a conspiracy to defraud and white-collar crime/corruption or other offences against the applicant.

The agency objected to the Summons being issued. It submitted, in effect, that the Summons did not serve a legitimate forensic purpose, and therefore would constitute an abuse of process.
The Tribunal’s power to direct the Registrar to issue a Summons is found in s 48(1)(b) of the NCAT Act. It is in the form of an unfettered discretion. However, that discretion must be exercised judicially having regard to established principle. In short summary, a party ought to be permitted to issue a Summons if it serves a legitimate forensic purpose. The issuing party bears the onus of establishing the legitimate forensic purpose. However, that is not a high onus. It is sufficient for the applicant for the summons to establish that the evidence they seek to elicit from the witness (here) is of ‘apparent relevance’ or, put another way, that there is a ‘reasonable basis beyond mere speculation’ that it would ‘materially assist’ on an identified issue. Nevertheless, the Tribunal must guard against an abuse of its process. An application to Summons a witness will be dismissed using the power conferred by s 55(1)(b) of the NCAT Act if it seeks to pursue some ‘improper, illegitimate or ulterior purpose which is foreign’ to the proceedings: icare NSW v Webb [2023] NSWCATAP 192 at [39].
The issues to be determined in this administrative review are whether the agency’s decision that some of the information sought by the applicant is ‘excluded information’ which operates to render that part of his application invalid and its’ decision that otherwise the information sought by the applicant is not held by the agency, are the correct and preferrable decisions. In this respect, this administrative review is of narrow compass. The Tribunal’s jurisdiction and powers in conducting this review are confined by the NCAT, GIPA and ADR Acts. The Tribunal does not exercise jurisdiction or power ‘at large’.
In this administrative review Tribunal has no role in determining any of the following:

whether the agency has disseminated information about the applicant to ‘various other organisations’ and if so whether this constituted ‘serious wrongdoing’ by it,

whether the agency is ‘involved in unlawful and continuous surveillance’ of the applicant or is has otherwise engaged in ‘serious wrongdoing’ towards him,

whether the agency is engaged ‘in a conspiracy to defraud’ the applicant or other ‘white collar crimes’, ‘corruption’, and ‘offences’ against the applicant.

Therefore, to the extent that the Summons requires Mr Barnes’ attendance to give evidence in relation to such matters it is an abuse of process. The exploration of such matters can serve no legitimate forensic purpose in relation to the issues to be determined in this administrative review.

The Tribunal does have the role of determining whether or not information sought by the applicant is information that is excluded from operation of the GIPA Act access to information provisions. However, that is ascertained by reference to the applicant’s description of the information sought and the application of the relevant provisions of the GIPA Act.
I accept that Mr Barnes is able to give evidence in relation to the agency’s functions and that to this extent his evidence on this point would be of apparent relevance. However, the agency offered Mr Leivesley as a witness on this point who was available for cross examination. There is no reasonable basis to believe that Mr Barnes’ evidence as to the agency’s functions would materially assist the applicant to any extent greater that Mr Leivesley’s evidence on this point at the level of enquiry necessary to establish the correct operation of the GIPA Act legislative scheme in the circumstances. That is largely because the agency’s functions are prescribed by its constituting legislation.
While Mr Barnes has no immunity or greater status than anyone else before the Tribunal, I am not satisfied that it would serve a legitimate forensic purpose for him, as head of agency, to be compelled to give evidence that is capable of being given by an available delegated officer. It was vexatious of the applicant to attempt this.
For these reasons I dismissed the applicant’s application for a Summons.

Application for non-publication order

I have set out above some relevant background to this issue. Over the lunch recess the applicant prepared an Application for miscellaneous matters which he provided to the agency and the Tribunal at the resumption of the hearing. That application sought the following:

Pursuant to s 64(1)(b) of the NSW Civil and Administrative Tribunal Act 2013 (NSW), an order prohibiting or restricting the publication or broadcast of any report of the proceedings including any decision, judgement, order or correspondence.
1. In the ‘grounds for application’ section of this application form, the applicant states the following:

(a) reveal applicant’s personal information

(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998

(c) prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings

(d) prejudice the fair trial of any person, the impartial adjudication of any case or the Applicant’s right to procedural fairness

(e) may reveal false or unsubstantiated allegations about a person that are defamatory

(f) exposes the Applicant to a risk of harm or of serious harassment or serious intimidation.

It will be noted that each of these grounds is a s 14 Table clause 3(a) public interest consideration against the disclosure of government information. The GIPA Act s 14 Table has no relevance to the question of whether a non-publication order should be made under s 64 of the NCAT Act.
Nevertheless, the issues that lie behind these asserted grounds are capable of being relevant as to whether a non-publication order should be made. I therefore invited the applicant to explain why he sought a non-publication order by reference to those and any other issues. In summary, he submitted:

the proceedings identify him by his name and the documents related to his access request contain other personal information, including his residential address, phone number, date of birth, car registration no, Tax File Numbers, Australian Business Number, a company affiliation, and electronic device serial numbers. This information is capable of being used in adverse ways against him by persons who have malevolent intent towards him,

he is involved as a plaintiff in litigation in the Supreme Court. Information that may be revealed about him in these proceedings may prevent him from receiving a ‘fair trial’ in the Supreme Court, and may otherwise be to his disadvantage in those proceedings,

he is the victim of a high level, multiorganizational, conspiracy which has the object of his financial and personal destruction. This involves continuous surveillance of him. Information that may revealed about him in these proceedings would somehow be used by these wrongdoers to cause him further harm.

The agency opposed the applicant’s application for a non-publication order. In summary, it was submitted that such an order would be inconsistent with the principle of open justice and that the proceedings did not involve any confidential information that should not be published.
Section 64 of the NCAT Act relevantly provides:

Tribunal may restrict disclosures concerning proceedings
If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

…

(b) an order prohibiting or restricting the publication or broadcast of any report of the proceedings in the Tribunal,

…

For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
1. The power conferred by s 64(1) is discretionary (the Tribunal “may” make such an order). Section 64(1) does not confer any automatic or absolute right on an applicant for such an order to obtain it. The discretion is engaged if the Tribunal is ‘satisfied’ that such an order is ‘desirable’. A state of satisfaction is one of persuasion attained on a rational basis. The Tribunal must be content as to the existence of confidential evidence or of any other matter or reason that would justify such an order being made.
2. Section 64(1) does not impose a formal onus of proof on an applicant for an order. That is because the Tribunal itself may make such an order of its own motion. However, because there must be material before the Tribunal that establishes to the Tribunal’s ‘satisfaction’ the ‘desirability’ of a non-publication order being made, an applicant for such an order does bear an evidentiary or practical onus of establishing the desirability of such an order: Ritson v Commissioner of Police (No. 2) [2022] NSWCATAD 89 at [63]; this finding was not disturbed on appeal in Ritson v Commissioner of Police [2022] NSWCATAP 223 at [39] to [51].
3. In DLH v Nationwide News Pty Ltd [2018] NSWCATAD 92 Deputy President Hennessy applied in relation to s 64 of the NCAT Act the principles distilled in a decision of an Appeal Panel of the former Administrative Decisions Tribunal in State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 (Dezfouli) in relation to s 75(2) of the former Administrative Decisions Act 1997 which was an equivalent provision to s 64. At paragraphs [6] to [11] her Honour summarised the relevant principles to be applied as follows:
… In State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 …After a comprehensive analysis of the statute and the case law the Tribunal drew attention to the following points relevant to its decision in that case:

81. ….(a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of ‘desirability’; (d) the important differences between the types of suppression order that may be made – between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served (‘any other reason’); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order.

The first principle mentioned by the Appeal Panel, “the presumption in favour of open justice”, is a common law principle. Kirby P explained the principle in the following terms in John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 142-143 (citations deleted):

It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms …

A significant reason for adhering to a stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of the proceedings is that such interests must be sacrificed to the greater public interest in adhering to an open system of justice.

The importance of the common law principle of open justice when exercising the discretion in s 64 of the NCAT Act was highlighted by the Appeal Panel in State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61]:

…it is unthinkable that the word ‘desirable’ in s 75(2) should be interpreted without regard to the basic common law precept of open justice. What is ‘desirable’ under a statutory provision must be determined in accordance with consistent standards and values, not the particular preferences of the court or tribunal applying the provision. The values that have informed judicial decisions about the issues raised in section 75 have consistently attributed considerable importance to the desirability of hearings being open to the public and fully reportable unless good reasons are advanced for restricting public access and/or full reporting.

…

… the starting point when determining an application for a non-disclosure order is to identify the reasons which are said to favour the making of such an order. The reasons may be “the confidential nature or any evidence or matter or any other reason”. The reason must be “good grounds for making the order”: State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [81]. Generally speaking the prospect of damage to reputation or ‘embarrassment’ affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, but there may be unusual circumstances where this is the principal consideration underlying an order.
After identifying the reason for the application, the next step is for the Tribunal to take into account any other relevant considerations, particularly the presumption in favour of open justice. The Tribunal observed in Carroll v Tokdogan [2015] NSWCATAD 200 at [8] that the principle of open justice means that “the power contained in s 64 should be exercised sparingly”. Other relevant factors include the nature of the order being sought.
1. Having regard to these principles, I substantially accept the applicant’s submission that the personal information I have described at paragraph 45i is personal information of a sensitive and confidential nature, other than in relation to the applicant’s name. One need not accept the applicant’s assertions about conspiracy, surveillance, and wrongdoing against him to recognise that this personal information, if it were to appear in a published decision of the Tribunal, would expose the applicant to the possibility of identity theft. However, that risk can be overcome by me not re-producing this information in the published decision. I am satisfied that I can provide adequate reasons for decision without specifically citing this information. A non-publication order is therefore not necessary in relation to this information.
2. While a person’s name is personal information, it is not, without more, sensitive, or confidential information. The appearance of a person’s name as a party to or in connection with legal proceedings may involve a degree of unwanted exposure or embarrassment, but that is an ordinary incident of litigation. Absent any special feature, any privacy value is subordinate to the value of open justice.
3. I am not satisfied that there is any special feature in this case that would justify a non-publication order limited to the applicant’s name, let alone one that would suppress publication of the outcome of the proceedings so as to avoid revealing his name, which is the order sought. As I have said above, these are administrative review proceedings of narrow compass. The purpose of the administrative review is to determine if the agency’s internal review decisions in relation to the applicant’s access application are the correct and preferable decisions. All the administrative review is capable of revealing about the applicant is that he made an access request to the agency for certain government information which the agency determined in particular ways, which he disputes. A published decision which determines that dispute may result in a degree of unwanted exposure and embarrassment for the applicant, but this is an ordinary incident of litigation in a system of open justice.
4. I cannot see any rational basis upon which the outcome of this administrative review could deprive the applicant of a fair trial in any proceedings in another place. Nor will the published outcome of the review contain anything relating to false and unsubstantiated allegations about the applicant, or material that is defamatory of him. The administrative review is not concerned with the investigation of the applicant’s allegations of wrongdoing by various parties. Although I must briefly refer to these allegations to give reasons for refusing the applicant’s applications for a Summons and a non-publication order, any unwanted exposure or embarrassment this may occasion the applicant is a necessary incident of open justice. I am not satisfied that there is any rational basis upon which it could be concluded that reference to the applicant’s allegations would somehow equip wrongdoers to commit further harms against him. The allegations are stated at a high degree of generality. They do not identify any person or organisation.
5. For the foregoing reasons I refuse the applicant’s application for a non-publication order. Other than the personal information I have discussed above which I need not re-produce in this decision, I am not satisfied that there is any evidence or matter of a confidential nature, or any other reason, to make the order sought.

Material facts

The respondent is a “public authority” as that term is defined in Schedule 4, clause 2(1)(b) of the GIPA Act and an “agency” to which the GIPA Act applies by operation of s 4(1)(c) of that Act.
By an ‘access application’ and covering letter lodged with the agency on 15 February 2023 the applicant sought access to the following information:

… I would like to request the following information from New South Wales Crime Commission as below:

1.a. All documents held in the databases of New South Wales Crime Commission, including but not limited to the database where commission’s disseminations are recorded, for each of the following uniquely identifiable search criteria mentioned in the table below (i. to xii.)

1.b A copy/print out of search results from the databases to substantiate that all documents for each search in the search criteria mentioned below in (i. to xii) have been provided. If the record does not exist for a search term, then can you please provide a copy/print-out of search results showing search terms and blank results.

S.No.

Type

Search terms

i.

My name

“Akhill Sethi” or any variations of my name

ii.

Address

[not for publication]

iii.

Phone Number

[not for publication]

iv.

Car Registration

[not for publication]

v.

Key word

“APIICAL” & “APIICAL Pty Ltd”

vi.

Date of Birth

[not for publication]

vii.

Device Serial Number

[not for publication]

viii.

Device IMEI

[not for publication]

ix.

Device Serial Number

[not for publication]

x.

TFN

[not for publication]

xi.

ABN

[not for publication]

xii.

TFN

[not for publication]

Full details of the dissemination released to recipient organisation ‘Technology Company – Arlo Technologies’ along with any device ids in the annual reporting period of the year 2021-22.
Full details of the dissemination released to ‘MasterCard’ in the annual reporting period of the year 2020-2021. If this consists of card details and if that can’t be provided in full then please provide the full name of the card holder/s and first and 4 and last 4 digits of the card/s.
Full list and details of disseminations released to ‘Revenue NSW’ in the annual reporting period of the year 2018-2019
1. On 20 February to delegate of the agency telephoned and spoke with the application to clarify certain aspects of his access request. Later that day the delegate issued a Notice to the applicant advising that he had determined that the applicant’s access request was partially invalid and that he had amended the request accordingly. I shall refer to this Notice as the agency’s ‘first decision’. The relevant sections of this Notice are set out following:

…

Scope of your application

We spoke by telephone at 11:06am on 20 February 2023. You clarified that your references to disseminations in categories 1a, 2, 3 and 4 were references to intelligence disseminations under s 13 of the Crime Commission Act 2021 (NSW) made by the Commission reported on its annual report.

You clarified that in relation to category 1a and 1b, you are seeking searches to be conducted of all Commission databases including investigative databases and databases not relating to the Commission’s investigative or reporting functions.

I have considered these clarifications of the scope of your application when deciding whether your application is a valid access application.

Validity of the application

Pursuant to s 51 of the GIPA Act, the Commission is required to decide whether your application is a valid access application. I have decided that your application is partially invalid for the reasons set out below.

Section 43(1) of the GIPA Act sates that an access application cannot be made to an agency for “excluded information”, and s43(2) makes clear that an application is invalid to the extent that it breaches s 43(1) by seeking excluded information.

Information held by the Commission is excluded information if it relates to any function specified in Schedule 2 of the GIPA Act concerning the Commission. Schedule 2 sets out that information that relates to the Commission’s investigative and reporting functions is excluded information.

I have carefully considered your application and have formed the view that s 43 of the GIPA Act operates to invalidate part or all of each of the categories of information you have requested:

Section 43(2) makes your requests for information in categories 2, 3, and 4 wholly invalid as each of those categories seek details of disseminations of intelligence or information by the Commission. The Commission’s practice of disseminating information or intelligence relates directly to the Commission’s investigative functions as the dissemination of intelligence and information by the Commission is done in connection with or as a result of Commission investigative activity.

Section 43(2) operates to make your requests for information in categories 1a and 1b partially invalid to the extent that the information sought relates to investigative functions of the Commission. Category 1a and 1b, with the benefit of your clarification, seek searches be undertaken of all databases held by the Commission, including but not limited to databases where Commission disseminations are recorded. For the same reasons as are outlined for categories 2, 3, and 4 above, Commission disseminations are excluded information. Any other database that relates to or contains investigative information would also constitute excluded information and thus access to information within it cannot be validly requested under the GIPA Act. As such, screenshots of any database information that relates to the Commission’s investigative or reporting functions are also invalid.

Having considered what portion of your application is valid and can continue to be processed, I will process your access application as seeking the following information (bold words added by me):

1.a All documents which do not contain excluded information held in the databases of New South Wales Crime Commission, ~~including but not limited to the database where commission’s disseminations are recorded,~~ for each of the following uniquely identifiable search criteria mentioned in the table below (i. to xii.).

1.b A copy/print out of search results that do not reveal excluded information from the databases to substantiate that all documents for each search in the search criteria mentioned below in (i. to xii.) have been provided. If the record does not exist for a search term, then can you please provide a copy/print out of search results showing search terms and blank results.

…

By letter to the agency dated 23 February 2023 the applicant sought an internal review of the agency’s first decision. I shall refer to this as the applicant’s first internal review application. He cited as grounds for that review the following propositions:

the information sought in categories 2, 3 and 4 of his access application should not be considered excluded information as it had already been shared with organisations external to the agency and consequently existed elsewhere outside the agency,

even though the information sought may exist in the databases related to the agency’s investigative or reporting functions, that information requested in category 1.a. and 1.b. is ‘personal information’ and should not be considered excluded information on that basis,

he was not able to obtain the information sought via any court process or police checks,

he considered himself a victim of white-collar crime, corporate conspiracy, conspiracy to defraud, and unlawful government investigation and surveillance. He required the information sought by his access application to expose this, defend himself, and advise the agency how to channel its resources in the right direction,

there are compelling personal factors of the application to be considered in accordance with s 55 of the GIPA Act, being the matters summarised immediately above, which have had a severe impact on his personal life and financial security,

the policy of the GIPA Act, evident in ss 3, 5, 9, 12, and 13, requires the disclosure of the information sought unless there is an overriding public interest against disclosure which there is not.

By Notice to the applicant dated 13 March 2023 the delegate of the agency notified the applicant of the outcome of his access application as it was amended by the agency on 20 February 2023. I shall refer to this decision as the agency’s second decision. The decision is encapsulated in the following extracts:

…

Decision

I have decided, pursuant to section 58(1)(b) of the GIPA Act that the information sought in your application … is not held by the Commission.

Category 1.a

Under the GIPA Act, we must conduct reasonable searches for the government information you asked for in your application. In accordance with section 53(1) of the GIPA Act, I have read your application as applying to information held by the Commission as at the time of your application was received on 16 February 2023.

I have searched our records to find information of the types you identified in your application that falls within the scope of your application. I conducted searches for each of the types of information set out in the table…

…

Following a review of each search conducted having regard to the scope of the information you were seeking and the type of information you were seeking with each search term outlined above, there was no material that was within the scope of your application category 1(a).

Category 1.b.

I note that section 53(1) of the GIPA Act means the scope of a GIPA application is limited to the information held by the Commission at the time the application was submitted.

In accordance with s 53(1) of the GIPA Act, I have read your application as only applying to information held by the Commission as at the time your application was received on 16 February 2023. No copies/print outs were held at the time your application was received. Therefore, there was no material that was within the scope of your application category 1(b).

…

By letter to the agency dated 6 March 2023 the applicant provided further information he wished to be considered in the internal review of the agency’s first decision. This was information about a complaint the applicant made to NSW Police about ‘unauthorised and unlawful surveillance’ of him, including a copy of document headed ‘voluntary statement’ dated 2 February 2023 which was apparently given to NSW Police in connection with that complaint. He requested the internal reviewer to consider the contents of his letter and its attachment as additional personal factors of his access application.
By Notice dated 13 March 2023 the delegate of the agency notified the applicant of the outcome of his first internal review application. I refer to this as the first internal review decision. That decision is encapsulated in the following extract:

Internal review decision

After careful and impartial review of the initial decision and considering the additional context you provided by letter to the Commission on 6 March 2023, I have considered your application as if the original decision had not been made. I have decided, where referring to categories 2, 3 and 4 … that your application is invalid.

The categories … relate to the Commission’s dissemination of intelligence or information. Such information relates directly to the Commission’s investigative function, which is excluded information under s 43(2) of the GIPA Act. By law, we cannot release this information to you.

You should note that while you have requested access to excluded information, which has been deemed invalid, this decision does not confirm the existence of information requested by you in relation to categories 2, 3 and 4 ….

I have also considered the decision made regarding categories 1a and 1b for searches of the Commission’s data bases which contain excluded information. For the same reasons noted above for categories 2, 3 and 4, Commission disseminations are also excluded information as they relate directly to the Commission’s investigative functions. Under the GIPA Act, any other database that relates to or contains investigative information is also considered excluded information.

In relation to parts 1a and 1b above, your application can progress, but only in relation (sic, ‘to’) information which is not excluded information.

I note that this outcome is consistent with the original decision, though I reached this decision separately, without reference to the original decision.

…

By letter to the Information Commissioner dated 3 April 2023 the applicant applied for an external review of the agency’s first internal review decision. In that application he cites as grounds for that external review the matters set out in first internal review application to the agency (paragraph 59 above).
Additionally, by letter to the agency dated 3 April 2023 the applicant applied for an internal review of the agency’s second decision. He cited as grounds for the internal review, the agency’s failure to provide him with:

… full copies/print outs of the screen substantiating that the searches were conducted within the respective databases (showing database names at the top of the screen) for the search terms provided with the respective results or no results showing.

By Notice dated 28 April 2023 the delegate of the agency notified the applicant of the outcome of his second internal review application. I shall refer to this as the second internal review decision. That decision is encapsulated in the following paragraphs:

…

Internal Review Decision

After careful and impartial review of the initial decision I have considered your application as if the original decision had not been made.

I conducted independent and impartial searches of the Commission’s databases which do not contain excluded information for the following as requested by you:

[the table from the applicant’s original access application is then set out]

The outcome of these searches show that the Commission does not hold any information related to the search terms in the above table, within our databases which do not contain excluded information.

I note in your letter requesting this review, you have requested copies/print-outs of the search results of the searches conducted. I am limited to providing information held at the time your application was received on 16 February 2023. As such I have considered whether this information was held at the time of receiving your application and have determined that no information existed at that time.

I note that this outcome is consistent with the original decision, though I reached this decision separately, without reference to the original decision.

…

In communications between the applicant and the office of the Information Commissioner between 13 April 2023 and 10 May 2023 the scope of the applicant’s external review application was clarified as extending to both internal review decisions.
The Information and Privacy Commission notified the applicant of the outcome of his external review application by letter and report both dated 26 June 2023. In short summary the delegate of the Information Commissioner determined that the agency’s internal review decisions were both justified. The delegate made no recommendations to the agency.
The applicant’s Affidavit dated 14 November 2023 sets out a description of his access application and a chronology of events concerning it (paragraphs 1 to 16). It also contains submissions related to fact and law which he contends should be found and applied by the Tribunal in this administrative review (paragraphs 17 to 34).
The agency relies upon the Affidavit of Nathan Leivesley dated 21 September 2023 who was also called as a witness at the hearing. Mr Leivesley is an Acting Senior Lawyer employed by the agency. In his current role, he is responsible for responding to enquiries about and applications for information by external parties, including access applications made under the GIPA Act. He was the delegate of the agency that first dealt with the applicant’s access application and who made the first and second decisions concerning it.
Mr Leivesley states the following in his Affidavit which was elaborated upon in oral evidence in response to questions from the applicant:

Investigative and reporting functions of Commission

The applicant’s access application is frames as seeking access to “all documents held in the databases” of the Commission in relation to particular search terms, as well as other “disseminations” released to the entities specified in subpoints 2-4.
Most records that are held by the Commission relate to its “investigative and reporting functions” (adopting the language of Sch. 2 of the GIPA Act). That is because the core functions of the Commission, as provided in the CC Act [Crime Commission Act 2012] and CAR Act [Criminal Assets Recovery Act 1990] involve investigation and reporting. The exception is records that relate to the incidental, corporate services functions of the Commission, such as procurement and people and culture related matters. For that reason, I concluded that the applicant’s request for information, on its face, was a request for excluded information of the Commission except to the extent that it could be construed as a request for information relating to the corporate services functions of the Commission. For example, in relation to the request for information containing the applicant’s name or address …, if the applicant had been involved in any recruiting processes with the Commission, he could validly apply for any resulting records that would be held by the human resources team.
I formed the view that any information of the Commission which is not corporate services information would be information that the Commission holds in relation to its investigative or reporting functions, because it would only have been received or created by the Commission in the exercise of its statutory powers in relation to investigation or reporting under ss 10 and 11 of the CC At (noting that s 11 provides that the Commission may have functions conferred or imposed on it under the CAR Act and may carry out investigations for the purposes of those functions).
I formed that view based on my experience and knowledge of the Commission’s statutory functions, and the way in which it obtains and generates information. As such, I consider that if the Commission held any information responsive to the access application, with the exception of information that was held in relation to corporate services, then it could only be held in relation to a financial or criminal investigative function or reporting function of the Commission. As I set out in the original decision, any application for that type of information would be an application for “excluded information” and would be invalid under the GIPA Act.
I noted that each of the subpoints 1a and 2-4 of the access application referred expressly to “disseminations”. I considered that this was likely to be a reference to the Commission’s functions under s 13 of the CC Act which provides that the Commission may disseminate “intelligence information”, as the Commission thinks appropriate. In order to confirm whether my understanding of this aspect of the access application was correct, I contacted the applicant … The applicant confirmed that the reference to “disseminations” in the access application were references to disseminations made under s 13 of the CC Act. Based on my experience working at the Commission, and for the reasons outlined above, I am aware that any disseminations of information made by the Commission would relate to the investigative functions of the Commission. That is because any dissemination undertaken by the Commission would be of intelligence and information gathered in the course of investigative functions. The annual report of the Commission referred to by Mr Sethi in his application for review to NCAT itself reveals the relationship of the intelligence disseminated with the investigative functions when the recipients of the disseminations are considered: the recipients include defendants and courts, integrity agencies, intelligence agencies, and private entities with connections to law enforcement such as banks and technology companies.

Accordingly, I determined that the applicant’s application for information was invalid, except to the extent that items 1(a) and (b) would be taken to be requesting information that does not relate to the investigative and reporting functions of the Commission…

…

With respect to the agency’s second decision in relation the amended access application, Mr Leivesley gave the following evidence:

Searches conducted for information

The Commission holds records in various formats on a central database. In the uncommon circumstances where paper files or physical exhibits are held by the Commission, a record of these physical documents or items also exists on the database
I believe that any documents that would be responsive to the access application would be held on this central database. It is possible to conduct keywords searches on the central database.

…

I searched all areas of the Commission’s database, using [the table set out in the access application].
I undertook searches of the whole of the Commission’s database and determined that there was no responsive information held.

…

I am not aware of any additional searches that could be (or could reasonably be) undertaken, which would result in information being identified in response to the access application.

Contentions of the parties

Applicant

The applicant’s ultimate submission is that the first and second internal review decisions are not the correct or preferable decisions in relation to his access application. He submits that the Tribunal ought to set aside those decisions remit his access application in its original form to the agency for processing in accordance with Parts 1 to 4 of the GIPA Act.
He submits that the information sought in points 1.a, 1.b, and 2 to 4 of his original application cannot be considered excluded information as it has been disseminated outside the agency and therefore exists elsewhere. In this respect he submits that the agency acted incorrectly by amending points 1.a. and 1.b of his original application so as to exclude excluded information from their scope.
However, with respect to the amended application and the agency’s second decision, the applicant submits that the agency has failed to provide access to information that is responsive to his request, which it clearly holds, which are copies or printouts of the search results for searches it undertook in response to his access application, which show each search term used. He contends that these search results were created in response to his access request and are therefore not ‘new records’ but even if they are the agency has the power to create them under s 75 of the GIPA Act.
He submits that the policy of the GIPA Act requires the agency to provide him with access to the information sought as a matter of general public interest, unless there is an overriding public interest against its’ disclosure, which there is not in this case. He submits for the reasons outlined above that there are compelling personal factors of the application which weigh heavily in favour of the disclosure of the information sought to him.

Agency

The agency submits that its’ first and second internal review decisions are the correct and preferable decisions. With respect to its first decision, it submits that its’ characterisation of the information sought by the applicant as excluded information is correct, and that as a consequence, the GIPA Act does not otherwise apply to it. It submits as a matter of principle, and without acknowledging that it does or does not hold any information that falls within the scope of the applicant’s access application, that any dissemination of information by the Commission in accordance with s 13 of the CC Act is pursuant to its investigative and reporting functions and the fact that it is transmitted to another agency does not convert the information into other than excluded information.
With respect to the amended application, it submits that it has conducted reasonable searches of its corporate services database and has found no information that is responsive to the applicant’s request. It submits that in accordance with s 51(1) of the GIPA Act its obligation to ascertain if it holds information responsive to the application extends up to the date the access application was received and not beyond it. On this basis it submits that any record created in relation to searches it conducted do not fall within the scope of the access request. While it accepts it has the power under s 75 of the GIPA Act to create a new record that details the searches it has conducted in response to the access request, it submits that it has declined to do so because the GIPA Act does not require it.

Jurisdiction

Section 100 of the GIPA Act provides that a person who is aggrieved by a decision that is a reviewable decision under the GIPA Act may apply to the Tribunal for an administrative review of that decision under s 55 of the ADR Act. Section 80 of the GIPA Act sets out what decisions are reviewable decisions for the purposes of that Act. They include a decision that an application is not a valid access application (s 80(a)) and a decision that information is not held by the agency (s 80(d)).
Section 101(1) of the GIPA Act provides, relevantly, that an application for administrative review of a decision specified in s 100 of that Act must be made within 40 working days after notice of the decision to which the review relates is given to the applicant. However, s 101(2) provides that if the decision is the subject of review by the information Commissioner, an application can be made at any time up to 20 working days after the applicant is notified on the completion of the Information Commissioner’s review. There is no issue that this application has been made within this second limitation period.
The Tribunal’s role in the conduct of an administrative review is prescribed in s 63 of the ADR Act:

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

(a) any relevant factual material,

(b) the applicable written or unwritten law

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.
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.

Applicable law

The starting point for analysis of the legislative scheme to be applied in this administrative review is found in the object of the GIPA Act in section 3 which states, relevantly:

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:

…

(b) by 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.

This object is amplified with a statutory command, contained in section 3(2), which provides:

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 possible cost, access to government information

The object of the GIPA Act is operationalized by various ‘machinery’ provisions of that Act.
Part 2 of the GIPA Act contains general principles relating to open government information.
Division 1 of that Part concerns ways of accessing government information. This includes, in s 5, a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. It also confers, in s 9(1), a legally enforceable right on a person who makes an access application 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. Section 11 provides that the GIPA Act overrides a provision of any other Act or statutory rule that prohibits the disclosure of information other than a provision of a law listed in Schedule 1 as an overriding secrecy law.
Division 2 of Part 2 of the GIPA Act concerns public interest considerations related to access to government information. This includes, in s 12(1), a prescription that there is a general public interest in favour of the disclosure of government information.
Section 13 contains a “public interest test” which is to be applied in determining whether access is to be provided to government information. It provides that there is an overriding public interest against disclosure of government information 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.
The public interest considerations against disclosure of government information are found in s 14 of the Act. Section 14(1) provides that 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. In this respect Schedule 1 provides:

Schedule 1 Information for which there is conclusive presumption of overriding public interest against disclosure

(Table 14)

…

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

…

Part 4 of the GIPA Act deals with access applications. Division 1 of that Part is concerned with making an access application. In this respect s 43 provides:

Access application cannot be made for excluded information
An access application cannot be made to an agency for access to excluded information of the agency.

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

An application for government information is not a valid access application to the extent that the application is made in contravention of this section.
1. With respect to s 43, Schedule 2 of the GIPA Act provides, relevantly:

Schedule 2 Excluded information of particular agencies

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

…

2 Complaints handing and investigative Information

…

The New South Wales Crime Commission – investigative and reporting functions.

Division 3 in that Part prescribes the process for dealing with access applications. Section 51 requires an agency to make an initial decision as to the validity of an application. It provides, relevantly:

Initial decision as to validity of application
When an agency receives an application for access to government information that it appears is intended to be an access application, the agency is to decide whether the application is a valid access application and is to notify its decision to the applicant by either:

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

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

[Note: An application is not a valid access application if it is an application for excluded information of the agency ...]

An agency’s decision as to the validity of an application must be made and notified to the applicant as soon as practicable after the agency receives the application and in any event within 5 working days after the application is received.

[Note: The decision as to the validity of an application is reviewable under Part 5.]

…

An agency’s decision that an application is not a valid access application is presumed to be correct, subject to any review of the decision under Part 5.
1. Section 55 also requires the agency to take into consideration personal factors of the application as set out in that section.
2. Division 4 of Part 4 sets out the process for deciding access applications. Section 58 prescribes how applications are to be decided. It provides, relevantly:
How access applications are decided
An agency decides an access application for government information by:

…

(b) deciding that the information is not held by the agency,

…

Division 6 of Part 4 concerns how access to government information is to be provided. In this respect s 75 provides:

Providing access by creating new record
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 a new record of that information.
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 the 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.

Part 5 of the GIPA Act concerns the review of reviewable decisions under that Act. Division 4 of that Part concerns administrative review by the Tribunal. Section 105 in that Division imposes an onus on an agency to justify its decisions. It provides, relevantly:

Onus on agency to justify decision
In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, ….
1. The agency is constituted under s 7 of the Crime Commission Act 2012 (NSW) (CC Act). The functions of the agency are set out in Division 2 of Part 2 of that Act. The functions identified in ss 10 to 14 are relevant in this administrative review:
Principal functions of Commission
The principal functions of the Commission are as follows -

(a) to investigate matters relating to a relevant criminal activity or serious crime concern referred to the Commission by the Management Committee for investigation,

(a1) to investigate matters relating to the criminal activities of criminal groups referred to the Commission by the Management Committee for investigation,

(b) to assemble evidence that would be admissible in the prosecution of a person for a relevant offence arising out of any such matters and to furnish any such evidence to the Director of Public Prosecutions,

(c) to furnish evidence obtained in the course of its investigations (being evidence that would be admissible in the prosecution of a person for an indictable offence against the law of the Commonwealth or another State or Territory) to the Attorney or to the appropriate authority in the jurisdiction concerned,

(d) to reinvestigate matters relating to any criminal activity that were the subject of a police inquiry (being an inquiry referred for reinvestigation to the Commission by the Management Committee) and to furnish its findings to the Committee together with any recommendation as to the action the Commission considers should be taken in relation to those findings,

(e) to furnish in accordance with this Act reports relating to organised and other crime, which include, where appropriate, recommendations for changes in the laws of the State,

(f) to provide investigatory, technological and analytical services to such person or bodies as the Commission thinks fit,

(g) with the approval of the Management Committee to work in co-operation with such persons or authorities of the Commonwealth, the State or another State or Territory (including any task force and any member of a task force) as the Commission considers appropriate,

(h) to apply for orders under the Crimes (Serious Crime Prevention Orders) Act 2016.

Nothing in this Division precludes the Commission from inquiring into matters connected with, or arising out of, the exercise of its functions under this or any other Act or law, whether or not those matters are the subject of a reference to the Commission by the Management Committee.
Functions under Criminal Assets Recovery Act 1990

The Commission may exercise a function conferred or imposed on it by the Criminal Assets Recovery Act 1990, may carry out investigations in aid of the exercise of those functions and may, for the purposes of that Act, make such use as it thinks fit of any information obtained by it in the execution of this Act.

11A Functions under Law Enforcement Conduct Commission Act 2016

…

As soon as practicable after a misconduct matter is received by the Crime Commissioner or after the Commissioner becomes aware of a misconduct matter, the Commissioner may … decide as follows –

(a) to investigate or otherwise deal with the misconduct matter under this Act,

…

Information and reports with respect to government agencies and members of government agencies
The Commission may, if it considers it desirable to do so –

(a) furnish any information relating to the exercise of the functions of a government agency that the Commission obtains, or a report on that information, to the relevant Minister, and

(b) make to that Minister such recommendations (if any) relating to the exercise of the functions of the government agency, as the Commission considers appropriate.

The Commission may, if it considers it desirable to do so –

(a) furnish any information relating to the conduct of a member of a government agency, in his or her capacity as such, that the Commission obtains, or a report on that information, to the head of that agency or (if the member is the head of the agency) to the relevant Minister, and

(b) make to the head or Minister such recommendations (if any) relating to the conduct of the member as the Commission considers appropriate.

Liaison with other bodies

The Commission may, in accordance with guidelines (if any) furnished by the Management Committee –

(a) disseminate intelligence and information to such persons or bodies of the Commonwealth, the State or another State or Territory or country (including any task force and any member of a task force) as the Commission thinks appropriate, and

(b) co-operate and consult with such persons or bodies as the Management Committee thinks appropriate.

…

Incidental powers of Commission
The Commission has power to do all things necessary to be done for or in connection with, or reasonably incidental to, the exercise of its functions. Any specific powers conferred on the Commission by this Act are not taken to limit by implication the generality of this section.
1. With respect to these provisions, I note that the Management Committee of the agency is constituted under Part 3, by s 49, of the CC Act. The membership of the Management Committee is designated by s 50 of that Act. It comprises 5 members, being an independent Chairperson appointed by the Minister, the Commissioner of Police, the Chair of the Board of the Australian Crime Commission, the (Crime Commission) Commissioner and the Secretary of the Department of Justice or a senior executive of that Department nominated by the Secretary.
2. Section 59 of the CC Act is concerned with the furnishing of reports and information by the Commission to its Management Committee. It provides:

Furnishing of reports and information
The Commission must keep the Management Committee informed of the general conduct of its operations in the exercise of its functions, and, if the Committee requests the Commission to provide to it information concerning a specific matter relating to the Commission’s operations in the exercise of its functions, the Commission must comply with the request.
In particular, the Commission must report to each meeting of the Management Committee the particulars of any warrants issued by the Commissioner under section 36 that have not been previously reported to the Management Committee.
A report made by the Commission under this Act that sets out any finding that an offence has been committed, or makes any recommendation for the institution of a prosecution in respect of an offence, must not be released to the public by the Commission unless the Management Committee, in the special circumstances of the case, approves.

Consideration

To determine the outcome of this administrative review the Tribunal must ask an answer the following questions:

With respect to the first reviewable decision

what is meant by the term “investigative and reporting functions” as that term is used with respect to the agency in Schedule 2?
what is meant by, or what is the scope of, the term “relates to a function” as that term is used in in the chapeau of Schedule 2?
having regard to the answers to these questions was the agency’s first internal review decision correct in concluding that the applicant’s access application substantially related to ‘excluded information’ and invalid to that extent?

With respect to the second reviewable decision

did the agency’s amendment of the applicant’s application incorrectly or unreasonably limit its scope such that it failed to conduct reasonable searches for information that was responsive to that application?
was the agency obliged to provide the applicant with information generated in the conduct of searches to prove the non-existence of information related to each search term?
having regard to the answers to these questions was the agency’s second decision pursuant to s 58(1)(b) of the GIPA Act that information sought by the applicant was not held by the agency the correct and preferrable decision?

Investigative and reporting functions

In my respectful view, the starting point for this analysis is to recognise that the GIPA Act is beneficial legislation that is to be construed liberally having regard to its’ beneficial purpose, which is to facilitate access to government information in various ways. Such access is subject to exceptions or limitations, but consistent with a beneficial approach to construction, those limitations and exceptions are to be construed narrowly. In this respect I have some difficulty with the proposition that the words “investigation and reporting functions”, where used in Schedule 2 of the GIPA Act, are to be understood as “general terms and not by reference to any specific legislative provision” as was the Appeal Panel’s conclusion in DNM v NSW Ombudsman [2019] NSWCATAP 7 at [46] and [47]; applied in Christopher v Independent Commission Against Corruption [2021] NSWCATAD 256 at [97]. Rather, it appears to me that for the s 43(2) exclusion from the GIPA Act to come into play, the agency must identify a specific investigation and reporting function to which the information sought relates. I find support for that conclusion in what an Appeal Panel said Robertson v Deputy Secretary Local Government, Planning and Policy [2023] NSWCATAP 88 at [62].
The agency is a creation of statute. Its functions are prescribed in Division 2 of Part 2 of the CC Act (and by extension from s 11, by the CAR Act, and from s 11A, by the Law Enforcement Conduct Commission Act 2016 (NSW) (LECC Act)).
The agency’s ‘principal functions’ described in s 10(1)(a), (a1), (c), (d), and (f) of the CC Act each contain the word ‘investigation’ and/or a variant of that word. The reference to the agency’s ‘investigation functions’ in Schedule 2 must therefore be taken to refer to any information that relates to the agency functions specified in those sections. Similarly, the functions of the agency specified in ss 11 and 11A contain the word ‘investigation’, and in s 11A additionally, variants of it. The reference to the agency’s ‘investigation functions’ in Schedule 2 must therefore also be taken to refer to any information that relates to the agency functions specified in those sections.
The only principal function of the agency that expressly refers to a ‘reporting function’ is s 10(1)(e) which refers to ‘reports’ related to organised crime. However, the function specified in s 10(1)(d) requires the agency to “furnish” the Management Committee “findings” from reinvestigations undertaken upon referral from that Committee, “together with any recommendations as to action the Commission considers should be taken in relation to those findings”. That function is elaborated by s 59 of the CC Act which expressly refers, in s 59(2) and (3) and in its sub-heading, to the “furnishing of reports and information”. I am thus satisfied that s 10(1)(d) also specifies a reporting function for the purposes of s 43(2) and Schedule 2 of the GIPA Act.
Additional reporting functions are specified in s 12(1)(a) and 12(2)(a). The reference to the agency’s ‘reporting functions’ in Schedule 2 must therefore be taken to refer to any information that relates to the agency functions specified in those sections.
Section 13 of the CC Act confers discretion on the agency to “disseminate intelligence and information” to certain persons and bodies. It does not contain the words ‘investigation’ or ‘reporting’ or any variant of those words. The word ‘disseminate’ is a non-technical English word which should be given its ordinary meaning, which Oxford Languages defines as “to spread information, knowledge etc”. That meaning is qualitatively different to the relevant meaning of ‘report’ (reporting), which is to “provide an account of a situation or event etc”. A “reporting” of something involves an element of interpretation, analysis, or synthesis, whereas the ‘spreading’ of intelligence and information does not (or at least need not). I am thus not satisfied that s 13 designates an agency reporting function for the purposes of s 43(2) and Schedule 2. However, by reference to s 14, and Mr Leivesley’s evidence, I am satisfied that these activities of the agency are done “for or in connection with” or are “reasonably incidental to” the exercise of the agency’s investigation functions (those specified in s 10(1)(a), (a1), (d) and (g), and 11 and 11A) and engage the operation of s 43(2) and Schedule 2 in that way. Similarly, the functions specified in s 10(1)(b) and (c) are not in themselves investigation functions but are reasonably incidental to those functions.
I leave open for present purposes the possibility that there may be further agency investigation and reporting functions specified in the CAR Act and LECC Acts which time constraints prevent me from identifying. However, subject to that, it is my view that the reference in Schedule 2 to the agency’s ‘investigation and reporting functions’ must be read strictly to refer to those functions identified above. Information will be excluded information only if it “relates to” one or more of these identified functions.

‘Relates to a function’

In Travelex Ltd v Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510, French CJ and Hayne J said at [25] “it may be readily accepted that “in relation to” is a phrase that can be used in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ”. It is thus necessary to consider the meaning of the words “relates to” specifically in the context of the GIPA legislative scheme. What those words, and variants of them, have been interpreted to mean in different statutory contexts may be instructive, but cannot be decisive.
The meaning of the term “relates to”, where used in the chapeau of Schedule 2 has been the subject of discussion in a number of cases. In Beregi v Department of Planning, Industry and Environment [2020] NSWCATAP 185 (Beregi) at [77] an Appeal Panel held that those words should be given a “broad meaning” and signify that information which has a “broad connection” with the excluded function will be excluded information for the purposes of s 43(2). That conclusion is reflected in a number of first instance decisions made both prior to and after that case was determined; Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 at [59]; Sinclair v Psychology Council [2017] NSWCATAD 8 at [71]; Coppock v Willoughby City Council [2021] NSWCATAD 166 at [78]; Rawan Arraf v NSW Crime Commission [2022] NSWCATAD 81 (Arraf) at [41].
In Watson v NSW Trustee and Guardian [2015] NSWCATAD 139 at [16] a first instance Tribunal characterised the issue to be determined as the “extent to which the information in issue has a connection to the specified function”. In Arraf another first instance Tribunal said with respect to what was said in Bergi that “it is not necessary that the relationship be direct or substantial, but that an indirect and less substantial connection with suffice”. I think the better view is that the information must demonstrably related to the specified function, that is to say, it must have clearly apparent connection with it. I cannot see how “relates to” can turn on a question of degree of connection. The information will either relate to the function or not.
A primary reason for this construction or approach is the context in which a decision pursuant to s 43(2) is made. It is a decision concerning the validity of an access application that is made before the application is otherwise processed in accordance with Part 4 of the GIPA Act. The agency will not have undertaken searches for information that is responsive to the access request at this point, or at least the GIPA Act imposes no obligation on it to have done so. Such a decision is therefore made having regard to the characteristics of the information sought in the access application by considering the applicant’s description of it, in circumstances where the agency may not know if it holds such information or not. In my view there must be reasonable certainty that the information sought relates to an excluded function for invalidity to be determined on the face of the application. To require less would be inconsistent with the beneficial purpose of the GIPA Act.
An immediate invalidity decision is to be contrasted with a decision made pursuant to s 14(1) and Schedule 1, clause 6 of the GIPA Act that there is a conclusive overriding public interest against disclosure of information because it is excluded information. In that case, the agency will have concluded after dealing with an access application deemed valid in accordance with Part 4, including having conducted searches for information responsive to the application, that specific identified information is excluded information. In my view, it would be more consistent with the purpose of the GIPA Act for this route to be adopted where it is not demonstrably clear on the face of an access application that information sought is excluded information.
Having regard to these considerations the question the Tribunal must ask itself is whether the information sought by the applicant in his access application is, to any extent, demonstrably related to a specific excluded function of the agency.

Is the applicant’s access application substantially related to ‘excluded information’ and invalid to that extent?

There is no issue between the parties in this case that the applicant’s reference to “dissemination” in paragraphs 1.a to 4 of this access request is a reference to the agency function designated by s 13(a) of the CC Act. I note that the delegate of the agency confirmed that with the applicant by telephone call on 20 February 2023. The applicant’s confirmation that this is the case is recorded in agency’s first decision.
One difficulty with this conclusion is that I cannot see that this function includes any dissemination of information to any private sector entity such as are designated in paragraphs 2 and 3 of the applicant’s access request (“Arlo Technologies” and “MasterCard”). The agency’s functions, particularly under s 11 of the CAR Act, may involve dealings with private sector agencies involving some form of information provision required for those entities to assist the agency to trace proceeds of crime. Such acts of information provision are of a different character to the ‘dissemination’ of intelligence information to other State, Territory and Commonwealth agencies referred to in s 13.
Doing justice to the applicant’s access request therefore requires his reference to “dissemination” to be characterised as a request for information related to any outflow of information from the agency to any governmental or private sector agency for whatever purpose.
Having regard to the agency investigation functions designated by s 10(1)(a), (a1), and (d) and by s 11 of the CAR Act, and Mr Leivesley’s evidence, I am satisfied that it is clearly apparent that any outflow of information from the agency to a government or private sector person or agency that related to categories 2 to 4 of the applicant’s access request would relate to that investigative function.
I do not understand the applicant to challenge that conclusion. Rather, he contends that the ‘fact’ such information has been ‘disseminated’ to other persons or agencies means that it can no longer be characterised as excluded information because it is no longer confidential to the agency as it is held by other persons and/or agencies. This is a misconception. While at a general level it may be said that the ‘excluded information’ exception to the GIPA Act protects the secret or confidential functions of the agency, it is not necessary for the agency to prove that information that relates to its’ investigation or reporting functions is secret or confidential for exception to apply.
The applicant also submits the general public interest in the disclosure of government information and the personal factors of his access application somehow override the excluded information exception. These contentions are also founded upon misconceptions.
If government information is excluded information for the purposes of the GIPA Act that Act does not apply to it. There is no discretion to be exercised to facilitate access to this information (s 3(2)(b)); an access application for such information “cannot be made” (s 43(1)). Similarly, there is no statutory presumption that there is a general public interest in the disclosure of such information (see ss 5 and 12), and the release of such information is not subject to any public interest test (s 13). There is no legally enforceable right to access to such information (s 9(1)).
Similarly, the personal factors of an application only come into consideration where an access application has been deemed valid under s 51, and the application is otherwise being processed in accordance with Division 3 of Part 4 of the GIPA Act. Section 55 has no role to play in determining whether an access application is a valid application.
For completeness I note that in oral argument the applicant referred to s 11 of the GIPA Act as overriding any secrecy provisions contained in, or arising from, the operation of the CC, CAR or LECC Acts. He submitted that s 11 somehow meant that the agency could not refuse to disclose excluded information to him. Section 11 has no application in this case. It is the GIPA Act itself which contains the statutory rules that exclude information that relates to the agency’s investigative and reporting functions from the operation of that Act, not the CC, CAR or LECC Acts.
For the foregoing reasons, I am satisfied that the agency’s first decision that the information sought by the applicant’s access application substantially related to its investigation and reporting functions and was therefore excluded information that would not be the subject of an access application was correct. I will affirm that decision.

Did the agency’s amendment of the applicant’s application incorrectly or unreasonably limit its scope?

In Klaric v Commissioner for Police [2020] NSWCATAP 153 an Appeal Panel of the Tribunal considered the extent of the Tribunal’s power to review an agency decision pursuant to s 58(1)(b) that it does not hold government information, stating at [33]:

The question of whether government information is held by an agency is distinct from the question of whether the agency has conducted reasonable searches. The Tribunal has the power to review a decision that information is not held, but it has no power to review the sufficiency of an agency’s search.
1. The Appeal Panel in Wojceichowska concurred with that statement, but added at [41]:
… Nonetheless, whether an agency has complied with the obligation imposed by s 53 of the GIPA Act is plainly a relevant factor in determining whether an “information is not held” decision is the “correct and preferable decision”. …

stating at [42] to [44]:

The role of the Tribunal in reviewing an “information not held” decision (ss 58(1)(b), 80(e)) is “to decide what the correct and preferable decision is having regard to the material then before it”: s 100(1) of the GIPA Act and s 63(1) of the Administrative Decisions Review Act. The “burden of establishing that the decision is justified lies with the agency”: s 105(1) of the GIPA Act. In summary, the burden is on the agency to prove that the decision that the government information applied for is not held by the agency, is the correct and preferable decision.
In the context of a decision made under s 58(1)(b) of the GIPA Act, the issues of fact which an agency must establish on the balance of probabilities will depend on the reasons given by the agency that it does not hold the requested information. If the stated reason is that the agency has searched for the information but is unable to find the requested information, a factual issue will be whether the agency has undertaken “such reasonable searches as may be necessary to find any government information applied for that was held by the agency when the application was received”: s 53(2) of the GIPA Act. A further relevant issue may be whether material has emerged since the search was undertaken which suggests that the requested information exists and is held by the agency. Other relevant factual issues may include whether any search information would require an unreasonable and substantial diversion of the agency’s resources: s 53(5) of the GIPA Act.
In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to:
identify on the basis of the agency’s reasons and the applicant’s submissions, any relevant factual issues including those derived from s 53(1) – (5);
determine whether the agency has proved any relevant factual issues on the balance of probabilities;
consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency;
applying those findings, decide what the correct or preferable decision is;
affirm, set aside or vary the agency’s decision: s 63(3) of the Administrative Decisions Review Act.
1. The applicant objects to the agency’s amendment of his application to limit the scope of information sought to that which was not ‘excluded information’. He contends, in effect, that this resulted in the agency failing to undertake reasonable searches for information that falls within the scope of his access application.
2. However, Division 1 of Part 4 of the GIPA Act required the agency to determine upon its receipt if the access application was a valid application. In this respect, s 43(1) provides that an access application cannot be made to an agency for excluded information of the agency. For the reasons set out above, the agency was correct in concluding that the information sought by the access request substantially related to its investigation and reporting functions and was invalid to that extent by operation of s 43(2) of the GIPA Act.
3. Nevertheless section 43(2) contains words of limitation. An access request is not a valid access application “to the extent that the application is made in contravention of” s 43(1). Those words of limitation obliged the agency to deal with the access request as a valid access request to the extent that it did not relate to excluded information. That is what the agency did by amending the application to exclude excluded information from its scope. The agency was thus correct in limiting the scope of the application, and its subsequent searches for information responsive to the access request, in this way.
4. The effect of the amended scope of the application was to limit it to information held by the agency that did not relate to an investigation or reporting function, which are the substantive functions of the agency. On Mr Leivesley’s evidence I accept that it thus became the case that the only information that was capable of falling within the scope of the access application related to what can broadly be referred to as the agency’s corporate services functions (including procurement of goods and services necessary to support the agency’s functions and the agency’s functions as an employer). The agency’s searches for information within this amended scope did not result in any record responsive to the applicant’s access request being identified.
5. Mr Leivesley sets out in his Affidavit the searches that were undertaken in an attempt to identify information that fell within the scope of the amended application. On their face those searches appear reasonable. Otherwise than as stated above, the applicant did not challenge the adequacy of those searches. Nor do I understand the applicant to suggest that there is any reason to believe that the agency would hold any information responsive to his access request in records related to its corporate services functions. He has never supplied goods or services to the agency, and he has never been an agency employee.
6. For the foregoing reasons I am satisfied that the agency has discharged its onus of establishing that it has conducted reasonable searches for information that falls within the scope of the applicant’s access request.

Was the agency obliged to provide the applicant with information generated in the conduct of searches to prove the non-existence of information related to each search term?

Section 53(1) of the GIPA Act limits an agency’s obligation to disclose information that is responsive to an access request to information that is held by an agency when the application is received. It follows from this that information that is generated by an agency in response to an access request cannot fall within the scope of the access request.
In these administrative review proceedings, the agency bears the onus of establishing that it has undertaken reasonable searches for information that falls within the scope of the application. That necessarily entails an adequate description of the searches undertaken and their results. ‘Print-outs’ of search results may be relevant evidence of this. However, at least in the circumstances of this case the agency has discharged its onus without the provision of any documentary evidence of searches undertaken for the reasons stated above.
Section 75(1) of the GIPA Act provides, in effect, that s 53(1) does not prevent an agency from creating a new record and providing it to an access applicant in response to an access application. There is thus no doubt that the agency could create search reports related to the applicant’s access application paragraph 1.b. However, s 75(1) confers a discretion on an agency to create and provide a new record. Section 75(2)(a) and (c) make it clear that the agency has no obligation to do so. In this case the agency has determined not to do so. That decision is not a reviewable decision. It is therefore not open to the Tribunal in this administrative review to do any more than satisfy itself that the agency was entitled to deal with paragraph 1.b of the applicant’s access request in this way.

Was the agency’s second decision that information sought by the applicant was not held by the agency the correct and preferrable decision?

For the foregoing reasons, I am satisfied that the agency’s decision pursuant to s 58(1)(b) of the GIPA Act that it does not hold information that is responsive to the applicant’s access request, as amended, is correct. The agency has no obligation to provide to an access applicant information that is created after an access request is made.

Orders

For the foregoing reasons I make the following orders:
The applicant’s application to adjourn the hearing is refused.
The applicant’s application to summons Mr Michael Barnes, Commissioner, NSW Crime Commission, as a witness is refused.
The applicant’s application for a non-publication order is refused.
The agency’s internal review decision dated 13 March 2023 is affirmed.
The agency’s internal review decision dated 28 March 2023 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: 24 January 2024

Medium Neutral Citation:	Sethi v New South Wales Crime Commission [2024] NSWCATAD 21
Hearing dates:	12 December 2023
Date of orders:	24 January 2024
Decision date:	24 January 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P French, Senior Member
Decision:	1. The applicant’s application to adjourn the hearing is refused. 2. The applicant’s application to summons Mr Michael Barnes, Commissioner, NSW Crime Commission, as a witness is refused. 3. The applicant’s application for a non-publication order is refused. 4. The agency’s internal review decision dated 13 March 2023 is affirmed. 5. The agency’s internal review decision dated 28 March 2023 is affirmed.
Catchwords:	ADMINISTRATIVE REVIEW – Government Information (Public Access) Act 2009 (NSW) – whether information sought is ‘excluded information’ – whether information is not held by the agency PRACTICE AND PROCEDURE – whether hearing should be adjourned – whether the Registrar should be directed to issue a Summons compelling a person to attend the hearing to give evidence – whether a non-publication order should be made.
Legislation Cited:	Administrative Decisions Tribunal Act 1997 (NSW), s 75 Administrative Decisions Review Act 1997 (NSW), s 55, 58, 63 Crime Commission Act 2012 (NSW), ss 7, 10,11, 11A, 12, 13, 49, 50, 59 Government Information (Public Access) Act 2009 (NSW), ss 3, 5, 9, 12, 13, 14, 43, 51, 53, 58, 80, 100, 101, 105 Law Enforcement Conduct Commission Act 2016 (NSW)
Cases Cited:	AHB v NSW Trustee and Guardian [2014] NSWCA 40 AON Risk Services Australia Limited v Australian National University [2009] HCA 27 Beregi v Department of Planning, Industry and Environment [2020] NSWCATAP 185 Christopher v Independent Commission Against Corruption [2021] NSWCATAD 256 Coppock v Willoughby City Council [2021] NSWCATAD 166 DLH v Nationwide News Pty Ltd [2018] NSWCATAD 92 DNM v NSW Ombudsman [2019] NSWCATAP 7 Ghazal v Masterton Homes Pty Ltd [2018] NSWCATAP 227 Icare NSW v Webb [2023] NSWCATAP 192 Klaric v Commissioner for Police [2020] NSWCATAP 153 Nobarani v Maricone [2018] HCA 36 Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 Rawan Arraf v NSW Crime Commission [2022] NSWCATAD 81 Ritson v Commissioner of Police [No. 2] [2022] NSWCATAD 89 Ritson v Commissioner of Police [2022] NSWCATAP 223 Robertson v Deputy Secretary Local Government, Planning and Policy [2023] NSWCATAP 88 Sinclair v Psychology Council [2017] NSWCATAD 8 State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 Travelex Ltd v Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 Watson v NSW Trustee and Guardian [2015] NSWCATAD 139 Wojciechowska v Commissioner of Police [2020] NSWCATAP 173
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Akhil Sethi (Applicant) New South Wales Crime Commission (Respondent)
Representation:	Applicant (Self-represented) NSW Crown Solicitor (Respondent)
File Number(s):	2023/00235043
Publication restriction:	Nil

S.No.	Type	Search terms
i.	My name	“Akhill Sethi” or any variations of my name
ii.	Address	[not for publication]
iii.	Phone Number	[not for publication]
iv.	Car Registration	[not for publication]
v.	Key word	“APIICAL” & “APIICAL Pty Ltd”
vi.	Date of Birth	[not for publication]
vii.	Device Serial Number	[not for publication]
viii.	Device IMEI	[not for publication]
ix.	Device Serial Number	[not for publication]
x.	TFN	[not for publication]
xi.	ABN	[not for publication]
xii.	TFN	[not for publication]