Tribunal to set aside the reviewable decision and remit the matter under s65 of the ADR Act with the following orders: (1) Within 7 days, the Respondent is to confirm with the Applicant and Tribunal that the 79 documents produced confidentially to the Tribunal comprise all available information sought by the access application. If this cannot be confirmed, the Respondent is to provide the Tribunal with a copy of any additional information and an updated Table of Documents within that 7 days. (2) Within 7 days, the Respondent is to engage in consultation with all relevant third parties to the information sought by the access application in the following terms: (a) Provide each third party with a copy of the information held by the Respondent sought by the access application, relevant to that third party; (b) Require the third party to identify any objections to the release of that information, and the reasons for those objections, within 14 days. (3) Respondent to issue a reconsideration determination within 28 days, in accordance with these orders and reasons for decision. A copy is to be provided to the Tribunal. (4) Matter listed for directions on 7 November 2017 at 9.30am.
Catchwords:
ADMINISTRATIVE LAW – GIPA – Access to information – refusal of access – refusal – correct application of public interest test – discharge of onus – confidential information - failure to consult – correct and preferable decision
Andrew Taylor (Applicant) Destination NSW (Respondent) Information Commissioner (Intervenor)
Representation:
Counsel: M Painter SC (Respondent)
Solicitors: Banki Haddock Fiora Lawyers (Applicant) Lander & Rogers Lawyers (Respondent) Information and Privacy Commission (Intervenor)
File Number(s):
2016/00378436
reasons for decision
Background
On 21 April 2015…
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
AGLC
Taylor v Destination NSW [2017] NSWCATAD 272
Case
[2017] NSWCATAD 272
Decision Date
CaseChat Overview and Summary
The applicant, Taylor, sought access to 79 documents under the Government Information (Public Access) Act 2009 (NSW). The documents were in the possession of the respondent, Destination NSW, which refused to provide them. Taylor appealed the decision to the NSW Civil and Administrative Tribunal (NCAT), which was upheld. Taylor then applied to the Supreme Court for judicial review of the NCAT's decision.
The court was required to determine whether the NCAT correctly applied the public interest test in deciding to uphold the refusal of access to the documents. The court also had to consider whether the respondent discharged the onus of proving that the documents contained confidential information, and whether the failure to consult with third parties affected the decision.
The court found that the NCAT did not adequately apply the public interest test. The NCAT had not properly balanced the public interest in disclosure against the public interest in non-disclosure. The court also found that the respondent had not discharged the onus of proving that the documents contained confidential information. The failure to consult with third parties did not affect the decision as the court found that the documents did not contain confidential information.
The court set aside the NCAT decision and remitted the matter to the respondent for reconsideration. The court ordered that the respondent confirm the completeness of the documents produced to the Tribunal, consult with third parties and provide them with the information relevant to them, and issue a reconsideration determination within 28 days. The matter was listed for directions on 7 November 2017 at 9.30am.
Orders
Orders of the court
Tribunal to set aside the reviewable decision and remit the matter under s65 of the ADR Act with the following orders:
(1) Within 7 days, the Respondent is to confirm with the Applicant and Tribunal that the 79 documents produced confidentially to the Tribunal comprise all available information sought by the access application. If this cannot be confirmed, the Respondent is to provide the Tribunal with a copy of any additional information and an updated Table of Documents within that 7 days.
(2) Within 7 days, the Respondent is to engage in consultation with all relevant third parties to the information sought by the access application in the following terms:
(a) Provide each third party with a copy of the information held by the Respondent sought by the access application, relevant to that third party;
(b) Require the third party to identify any objections to the release of that information, and the reasons for those objections, within 14 days.
(3) Respondent to issue a reconsideration determination within 28 days, in accordance with these orders and reasons for decision. A copy is to be provided to the Tribunal.
(4) Matter listed for directions on 7 November 2017 at 9.30am.