Speer v NSW State Emergency Service - [2018] NSWCATAD 226

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Speer v NSW State Emergency Service [2018] NSWCATAD 226
Hearing dates: 2 May 2018
Date of orders: 26 September 2018
Decision date: 26 September 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Montgomery, Senior Member
Decision:
1   The decision by the NSW State Emergency Service to refuse to release the document titled Ken Speer Performance Management should be set aside. In its place the decision is made that the document is released.
2   The matter is remitted to the NSW State Emergency Service to allow it to undertake a review of other information that has been redacted to ascertain whether additional information should also be released as a consequence of Order 1.
3   A decision on the remitted issue is to be completed by 26 October 2018.
4   The matter is to be listed for further case conference on 30 October at 9.30 am.
5   The decision under review is otherwise affirmed.

Catchwords: ADMINISTRATIVE REVIEW - Administrative Law – Government Information – overriding public interest against disclosure - personal information - information provided to the agency during an investigation - prejudice supply of information - prejudice exercise of agency's functions – reasonableness of searches.
Legislation Cited: Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Government Information (Public Access) Act 2009
Privacy and Personal Information Protection Act 1998
Cases Cited: Amos v Central Coast Council [2018] NSWCATAD 101
BNQ v South Eastern Sydney Local Health District [2015] NSWCATAD 156.
Camilleri v Commissioner of Police, New South Wales Police Force [2012] NSWADT 5
Curtin v Lord Howe Island Board [2017] NSWCATAD 86
Peter Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139
Robinson v Commissioner of Police [2014] NSWCATAP 73.
Category: Principal judgment
Parties: Kenneth Speer (Applicant)
NSW State Emergency Service (Respondent)
Representation:
K Speer (Applicant in person)
Solicitors:
Sparke Helmore Lawyers (Respondent)

File Number(s): 2018/00006655
Publication restriction: Pursuant to section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 any confidential evidence filed with the Tribunal or given in a confidential hearing pursuant to section 107 of the Government Information (Public Access) Act 2009, is not to be disclosed without further order of the Tribunal.Those paragraphs of these reasons identified as [Not for publication] are not to be released to the Applicant or the public without further order of the Tribunal.

REASONS FOR DECISION

Introduction

This is an application by Mr Speer for review of a determination by the NSW State Emergency Service (“the SES” or “the agency”) under the Government Information (Public Access) Act2009 (“the GIPA Act”).
On 18 October 2017, following discussion between the parties, Mr Speer agreed to an access application in the following terms:

1. I request all documents relating to any assessment of my abilities and work performance from 16 November 2015 to 6 September 2017;
2. In an email dated 21 September 2015 at 1.09 pm from Amanda Williamson to Colin Malone there was the following…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2018] NSWCATAD 226
Decision Date: 26 September 2018

CaseChat Overview and Summary

The applicant, Ken Speer, sought judicial review of a decision by the NSW State Emergency Service (SES) to refuse to release a performance management document. The dispute was heard in the Land and Environment Court of New South Wales. The applicant argued that the SES's decision to withhold the document was unreasonable as it did not adequately consider the public interest in transparency and accountability.

The court was required to determine whether the SES had correctly applied the relevant legislation in withholding the document and whether the decision was reasonable. The court had to assess whether the SES had adequately considered the public interest in transparency and accountability and whether the overriding public interest against disclosure was correctly applied.

The court found that the SES had not adequately considered the public interest in transparency and accountability and had not correctly applied the relevant legislation. The court held that the SES's decision to withhold the document was unreasonable as it had not adequately considered the public interest in transparency and accountability. The court also found that the SES had not adequately considered whether the prejudice to the exercise of the agency's functions outweighed the public interest in disclosure. The court held that the SES's decision was unreasonable as it had not adequately considered the relevant factors.

The court set aside the decision by the SES to refuse to release the document and ordered that the document be released. The court also remitted the matter to the SES to allow it to undertake a review of other information that had been redacted to ascertain whether additional information should also be released. The court ordered that a decision on the remitted issue be completed by 26 October 2018 and that the matter be listed for further case conference on 30 October at 9.30 am. The decision under review was otherwise affirmed.

Orders

Orders of the court

1 The decision by the NSW State Emergency Service to refuse to release the document titled Ken Speer Performance Management should be set aside. In its place the decision is made that the document is released.

2 The matter is remitted to the NSW State Emergency Service to allow it to undertake a review of other information that has been redacted to ascertain whether additional information should also be released as a consequence of Order 1.

3 A decision on the remitted issue is to be completed by 26 October 2018.

4 The matter is to be listed for further case conference on 30 October at 9.30 am.

5 The decision under review is otherwise affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Speer v NSW State Emergency Service [2018] NSWCATAD 226
Hearing dates:	2 May 2018
Date of orders:	26 September 2018
Decision date:	26 September 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	1 The decision by the NSW State Emergency Service to refuse to release the document titled Ken Speer Performance Management should be set aside. In its place the decision is made that the document is released. 2 The matter is remitted to the NSW State Emergency Service to allow it to undertake a review of other information that has been redacted to ascertain whether additional information should also be released as a consequence of Order 1. 3 A decision on the remitted issue is to be completed by 26 October 2018. 4 The matter is to be listed for further case conference on 30 October at 9.30 am. 5 The decision under review is otherwise affirmed.
Catchwords:	ADMINISTRATIVE REVIEW - Administrative Law – Government Information – overriding public interest against disclosure - personal information - information provided to the agency during an investigation - prejudice supply of information - prejudice exercise of agency's functions – reasonableness of searches.
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Privacy and Personal Information Protection Act 1998
Cases Cited:	Amos v Central Coast Council [2018] NSWCATAD 101 BNQ v South Eastern Sydney Local Health District [2015] NSWCATAD 156. Camilleri v Commissioner of Police, New South Wales Police Force [2012] NSWADT 5 Curtin v Lord Howe Island Board [2017] NSWCATAD 86 Peter Zonnevylle v Department of Education and Communities [2018] NSWCATAD 139 Robinson v Commissioner of Police [2014] NSWCATAP 73.
Category:	Principal judgment
Parties:	Kenneth Speer (Applicant) NSW State Emergency Service (Respondent)
Representation:	K Speer (Applicant in person) Solicitors: Sparke Helmore Lawyers (Respondent)
File Number(s):	2018/00006655
Publication restriction:	Pursuant to section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 any confidential evidence filed with the Tribunal or given in a confidential hearing pursuant to section 107 of the Government Information (Public Access) Act 2009, is not to be disclosed without further order of the Tribunal.Those paragraphs of these reasons identified as [Not for publication] are not to be released to the Applicant or the public without further order of the Tribunal.