Warren v NSW Trustee and Guardian - [2013] NSWADT 178

Administrative Decisions Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Warren v NSW Trustee and Guardian [2013] NSWADT 178
Hearing dates: 21 February 2013
Decision date: 07 August 2013
Jurisdiction: General Division
Before: S Higgins, Deputy President
Decision:
Pursuant to para 63(3)(d) of the Administrative Decisions Tribunal Act 1997, the decision of the respondent is set aside and remitted for reconsideration in accordance with the findings as set out in these reasons for decision.

Catchwords: Government information - form of access - whether form of access requested by the applicant would interfere unreasonably with the operations of the agency - whether there is an overriding public interest against disclosure of the information in the way requested by the applicant - whether the considerations against disclosure of the information are relevant to the determination as to the form of access
Government information - public access - public interest considerations against disclosure - prejudice the supply of confidential information - prejudice the effective exercise of the agency's functions - prejudice the effectiveness of the review conducted by the agency - reveal false or unsubstantiated allegations that are defamatory - expose a person to a risk of harm or serious harassment or serious intimidation - personal information
Legislation Cited: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989
Government Information (Public Access) Act 2009
NSW Trustee and Guardian Act 2009
Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR180
Bray v North Coast Area Health Service [2009] NSWADT 93
Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19
Director General, Department of Education & Training v Mullet & anor (GD) [2002] NSWADTAP
McKinnon v Secretary, Department of Treasury [2006] HCA 45
Williams v Department of Industry and Investment [2002] NSWADT 192
Category: Principal judgment
Parties: Damian Warren (Applicant)
NSW Trustee and Guardian (Respondent)
Representation: Applicant in person
Crown Solicitor (Respondent)

File Number(s): 123211

reasons for decision

Introduction

This is an application, by Damian Warren (applicant), seeking review of a decision, of NSW Trustee and Guardian (respondent), made pursuant to the Government Information (Public Access) Act 2009 (GIPA Act), in regard to his request for access to specific government information. That request was made on 24 May 2012 and the terms of the request included the following:

'The NSW Trustee and Guardian Assets Branch "Workplace Review" carried out and now completed that was due for completion in the first quarter of 2012. ...'

Attached to the applicant's access request was a short letter in which the applicant explained the circumstances giving rise to his GIPA request. In that letter the applicant said:

'I respectfully request that I be furnished with a copy of the report, its recommendations and notes made by Miss Woodhouse. These can of course be de-identified if deemed necessary by yourself.'

The 'Workplace Review' is a report of a review, commissioned, in December 2011, by Ms Imelda Dodds, the Chief Executive Officer of the respondent, into the Client Assets Branch (CAB) of the respondent. Ms Woodhouse,…

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: [2013] NSWADT 178
Decision Date: 07 August 2013

CaseChat Overview and Summary

The applicant, Warren, sought access to information held by the respondent, NSW Trustee and Guardian, under the Government Information (Public Access) Act 2009. The dispute was heard by the Administrative Appeals Tribunal (AAT), which was asked to decide whether the form of access requested by the applicant would unreasonably interfere with the operations of the agency, whether there was an overriding public interest against disclosing the information in the requested manner, and whether the considerations against disclosure were relevant to determining the form of access.

The AAT considered the arguments made by both parties and examined the specific provisions of the Government Information (Public Access) Act 2009. It was noted that the agency had refused to provide the information in the form requested by the applicant, citing potential interference with agency operations and public interest considerations. The AAT assessed the evidence presented and evaluated the potential consequences of disclosing the information, including the risk of prejudice to the supply of confidential information, the effective exercise of the agency's functions, the effectiveness of the review conducted by the agency, and the risk of revealing false or unsubstantiated allegations that could be defamatory or expose a person to harm or harassment. The AAT found that the considerations against disclosure were relevant to the determination of the form of access and that the respondent had not adequately justified the refusal to provide the information in the requested form.

The AAT concluded that the decision of the respondent was flawed and set it aside, remitting the matter back for reconsideration in accordance with the findings in the reasons for decision. The AAT found that the respondent had not adequately considered the balance between the public interest in access to government information and the potential harm that could result from disclosure in the requested form. The AAT emphasised the importance of agencies carefully considering the specific circumstances of each request and the potential consequences of disclosure when deciding whether to grant access to government information.

Orders

Orders of the court

Pursuant to para 63(3)(d) of the Administrative Decisions Tribunal Act 1997, the decision of the respondent is set aside and remitted for reconsideration in accordance with the findings as set out in these reasons for decision.

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:	Warren v NSW Trustee and Guardian [2013] NSWADT 178
Hearing dates:	21 February 2013
Decision date:	07 August 2013
Jurisdiction:	General Division
Before:	S Higgins, Deputy President
Decision:	Pursuant to para 63(3)(d) of the Administrative Decisions Tribunal Act 1997, the decision of the respondent is set aside and remitted for reconsideration in accordance with the findings as set out in these reasons for decision.
Catchwords:	Government information - form of access - whether form of access requested by the applicant would interfere unreasonably with the operations of the agency - whether there is an overriding public interest against disclosure of the information in the way requested by the applicant - whether the considerations against disclosure of the information are relevant to the determination as to the form of access Government information - public access - public interest considerations against disclosure - prejudice the supply of confidential information - prejudice the effective exercise of the agency's functions - prejudice the effectiveness of the review conducted by the agency - reveal false or unsubstantiated allegations that are defamatory - expose a person to a risk of harm or serious harassment or serious intimidation - personal information
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 Government Information (Public Access) Act 2009 NSW Trustee and Guardian Act 2009
Cases Cited:	Attorney-General's Department v Cockcroft (1986) 10 FCR180 Bray v North Coast Area Health Service [2009] NSWADT 93 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Director General, Department of Education & Training v Mullet & anor (GD) [2002] NSWADTAP McKinnon v Secretary, Department of Treasury [2006] HCA 45 Williams v Department of Industry and Investment [2002] NSWADT 192
Category:	Principal judgment
Parties:	Damian Warren (Applicant) NSW Trustee and Guardian (Respondent)
Representation:	Applicant in person Crown Solicitor (Respondent)
File Number(s):	123211