Webb v Secretary, Department of Communities and Justice

[2025] NSWCATAD 38

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Webb v Secretary, Department of Communities and Justice [2025] NSWCATAD 38

Hearing dates:

On the papers

Date of orders:

10 February 2025

Decision date:

10 February 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Higgins, Senior Member

Decision:

(1) Pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the Tribunal dispenses with a hearing in this matter.

(2) Pursuant to section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 the disclosure to the applicant, her legal representative and the public of the email exchange provided to the Tribunal by the respondent on a confidential basis is prohibited.

(3)   The applicant’s application for an extension of time to lodge her administrative review application is refused.

(4)   The applicant’s administrative review application is dismissed for want of jurisdiction.

Catchwords:

ADMINISTRATIVE LAW – application for administrative review of an administratively reviewable decision made under the Government Information (Public) Access Act 2009 (NSW) – application lodged out of time – whether time should be extended

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)(repealed)

Civil and Administrative Tribunal Amendment Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:

ANQ v Department of Attorney General and Justice, Corrective Services [2012] NSWADT 271

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

Jacobs v Commissioner of Police, NSW Police Force [2013] NSWADT 54

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Telina Webb (Applicant)
Secretary, Department of Communities and Justice (Respondent)

Representation:

Applicant (Self-Represented)
Department of Communities and Justice - Legal (Respondent)

File Number(s):

2024/00063701

Publication restriction:

Pursuant to section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 the disclosure to the applicant, her legal representative and the public of the email exchange provided to the Tribunal by the respondent on a confidential basis is prohibited.

reasons for decision

1. This decision relates to an administrative review application lodged by the applicant, Telina Webb, on 19 February 2024, seeking administrative review by the Tribunal of the decision of the respondent, the Secretary of the Department of Communities and Justice, to refuse her access, in part, to the information contained in the third-party consultation email for which she had sought access, on 1 August 2023, under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).

2. It is accepted that the applicant’s review application has been lodged ten (10) days out of time prescribed in section 101(2) of the GIPA Act and unless the Tribunal extends the time for lodging that application, the Tribunal has no jurisdiction to hear and determine the applicant’s review application.

3. Hence, the applicant seeks an extension of time under section 101(4) of the GIPA Act. That section gives the Tribunal a discretion to extend the time for lodging an administrative review application, lodged pursuant to section 101(1) or (2) of the GIPA Act, if the Tribunal is of the opinion that the review applicant has provided a ‘reasonable excuse’ for the delay in making his or her review application.

4. The applicant and the respondent have both indicated that the applicant’s application for an extension of time to lodge her review application is suitable for determination on the papers under section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act): see respondent’s written submissions of 5 April 2024 and applicant’s written submissions of 19 April 2024.

5. Having considered the submissions of the applicant and the respondent and the material that is before the Tribunal, I am satisfied that the issues for determination in the applicant’s extension of time application can be adequately determined, in the absence of a hearing, by considering the material that is before the Tribunal, including the written submissions of the applicant and the respondent, and I make an order accordingly.

6. For the reasons set out below, in the circumstances of this case, I am not satisfied that the applicant has provided a ‘reasonable excuse’ for the delay in lodging her administrative review application: GIPA Act section 101(4). Hence, I have decided to refuse her application for an extension of time and dismissed her application for want of jurisdiction.

The applicant’s 1 August 2023 GIPA access application

7. On 1 August 2023, the applicant made an application to the respondent, under section 41 of the GIPA Act, in which she sought access to the following information:

I refer to the Department's Notice of Decision dated 31st July 2023.

In particular I Refer to the Decision at Page 9, Consultation.

In this regard this valid access application seeks an unredacted copy of the referenced third-party consultation documents, inclusive of all the two-way communications between the Department and the third party.

8. The respondent’s Notice of Decision dated 31 July 2023, was a decision by the respondent, on internal review, of its original decision concerning an earlier access application the applicant had made, under the GIPA Act, on 8 February 2023 (the earlier access application).

9. In that earlier access application, the applicant had sought access to specified documents concerning the terms of employment of Amol Mane and his authority to access the respondent’s GIPA Data Tool.

10. In its decision of 31 July 2023, the respondent determined to refuse to grant access to the information sought by the applicant in her earlier access application on the grounds that a disclosure of this information could reasonably be expected to have the effect, as prescribed in item 3(a) (reveal an individual’s personal information) and 3(b) (contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 (NSW)) of the table in section 14(2) of the GIPA Act and, on balance, these public interest consideration against disclosure of this information outweighed the public interest considerations in favour of its disclosure: GIPA Act section 13.

11. On page 9 of its 31 July 2023 decision concerning the applicant’s earlier access application, under the heading ‘Consultation’, the respondent noted that it had consult the person to whom the item 3(a) and 3(b) information related. In the last paragraph under this heading, the respondent said:

In accordance with section 54 of the GIPA Act, the Department consulted with a third party regarding the potential release of their personal information. Strong objections were raised by the individual regarding the release of their personal information pursuant to the GIPA Act and I have placed significant weight on their objection.

12. It was this information for which the applicant sought access in her 1 August 2023 access application.

The respondent’s initial determination of the applicant’s 1 August access application

13. On 29 August 2023, the respondent provided the applicant with its Notice of Decision, concerning her 1 August 2023 access application. In its decision the respondent noted that it had identified a three-page internal email exchange which contained the information for which the applicant had sought access. The date of the email exchange was 29 and 30 June 2023.

14. The respondent went on to decide:

1. to grant the applicant partial access to the information in this email exchange; and

2. to refuse the applicant access to the remaining information (the withheld information) on the grounds that this information fell within the public interest consideration against disclosure in item 1(f), 1(g), 3(a), 3(b) and 3(f) of the table to section 14(2) of the GIPA Act, and on balance, these public interest consideration against disclosure of the remaining (withheld) information outweighed the public interest considerations in favour of its disclosure: GIPA Act section 13.

15. At the end of its decision, the respondent set out the applicant’s review rights in the event she disagreed with the decision. In this regard, the applicant was advised that she had ’20 working days’ from the date of the Notice to apply for an internal review, or ‘40 working days’ from the date of the Notice to apply for a review by the Information Commissioner or the Tribunal.

The applicant’s application for external review by the Information Commissioner

16. On 27 September 2023, the applicant sought external review of the respondent’s 29 August 2023 decision.

17. On 22 December 2023, the Information Commissioner provided the applicant with a report of her review of the respondent’s 29 August 2023 decision.

18. In that report, the Information Commissioner found that:

1. the respondent’s decision concerning the withheld information on the grounds of the public interest considerations against disclosure in items 1(f), 3(a) and 3(b) was justified;

2. the respondent’s decision concerning the withheld information on the grounds of the public interest consideration against disclosure in items 1(g) and 3(f) were not justified; and

3. based on its findings the Information Commissioner found that the respondent’s decision under review, in its totality, was not justified and recommended that the respondent make a new decision by way of internal review.

19. In making her recommendation, the Information Officer recommended that the respondent advise the applicant, within 10 working days of the actions taken in response to her recommendations.

20. The Information Commissioner concluded her report by advising the applicant of her review right to NCAT if she remained aggrieved about the decision of the respondent. The applicant was also advised that:

An application for a review by the NCAT can be made up to 20 working days from the date of this report. After this date, the NCAT can only review the decision if it agrees to extend this deadline.

21. As noted above, the applicant lodged this application for administrative review on 19 February 2024.

Material before the Tribunal

22. In support of her application for an extension of time the applicant relied on:

1. her application for review lodged on 19 February 2024;

2. written submissions provided on 19 March 2024;

23. In support of its case, the respondent relied on:

1. written submissions provided on 10 April 2024, together with an open tender bundle; and

2. written submissions in reply provided on 3 May 2024.

24. The respondent also provided the Tribunal, in confidence, with an unredacted copy of the three-page internal email exchange which contained the information for which the applicant had sought access. That copy was provided in an envelope marked ‘Confidential’. To ensure that the withheld information contained in this copy is not disclosed (see section 107 of the GIPA Act) I find that it is appropriate to make an order under section 64(1)(d) of the NCAT Act prohibiting the disclosure of that document to the applicant, her legal representative and the public.

The legislative context and legal principles

25. The GIPA Act gives every member of the public an enforceable right to access government information, where access to that information is restricted only when there is an ‘overriding public interest against disclosure’: GIPA Act, section 3(1)(b) and (c).

26. Section 13 of the GIPA Act sets out the test as to when there is an overriding public interest consideration against disclosure, which provides as follows:

13   Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act 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.

27. Part 4 of the GIPA Act sets out how access applications are to be made (Division 1- ss 41 to 43), how the government agency is to deal with any such application that is made (Division 2 and 3 – in particular ss 51 to 52) and how the government agency is to determine that application (Division 4 – in particular sections 57, 58 and 60).

28. Where a government agency determines to provide the access applicant with access to the information sought (GIPA Act section 58(a)), section 73(1) of the GIPA Act provides that the agency ‘is not entitled to impose any conditions on the use or disclosure of the information’.

29. Section 57, in Division 4 of the GIPA Act prescribes times within which a government agency is to determine an access application. Section 57(1) provides that an access application is to be determined by a government agency within 20 working days after having received the access application. This time can be extended further for another 15 days or an additional period with the agreement of the access applicant: GIPA Act, section 57(2) and (4).

30. Part 5 of the GIPA Act makes provision for the review of decisions made by a government agency under Part 4 of the Act.

31. Division 3 in Part 5 makes provision for review of decisions of a government agency by the Information Commissioner. Section 90 in this Division provides that an application for review by the Information Commissioner must be made within 40 working days after the applicant for review is notified of the decision of the government agency.

32. Division 4 of that Part makes provision for administrative review of decisions of a government agency by the Tribunal. Section 101(1) and (2) in this Division prescribe the time when an application for administrative application is to be made as follows:

(1)  An application for NCAT administrative review must be made within 40 working days after notice of the decision to which the review relates is given to the applicant (unless subsection (2) gives a longer period to apply for NCAT administrative review).

(2)  If the decision is the subject of review by the Information Commissioner, an application for NCAT administrative review can be made at any time up to 20 working days after the applicant is notified of the completion of the Information Commissioner’s review.

33. Section 101(4)–(6) make provision for the Tribunal to extend the time within which an application for administrative review is to be lodged (bold added):

(4)  NCAT may, on application by a person wanting to make an application for NCAT administrative review out of time, extend the time for the making of such an application by the person if NCAT is of the opinion that the person has provided a reasonable excuse for the delay in making the application.

(5)  An application to extend the time for the making of an application for NCAT administrative review must be in writing unless NCAT dispenses with the requirement in a particular case.

(6)  The time for making an application for NCAT administrative review may be extended under this section even if that time has expired.

34. For completeness, I note section 112A of the GIPA Act provides that the provisions in Division 4 of Part 5 are intended to prevail to the extent of any inconsistency with provisions of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) and the NCAT Act.

35. The application of section 101(4) of the GIPA Act was considered by the former Administrative Decisions Tribunal in Jacobs v Commissioner of Police, NSW Police Force [2013] NSWADT 54 (Jacobs) at [29] and ANQ v Department of Attorney General and Justice, Corrective Services [2012] NSWADT 271 (ANQ) at [29]-[33].

36. At the time these decisions were made, the ADR Act (then named the ‘Administrative Decisions Tribunal Act’) contained a provision, section 57, that was in similar terms to section 101(4) of the GIPA Act. That section gave the then Administrative Decisions Tribunal a discretion to extend the time for the making of an administrative review application where, on the application of the review applicant, the Tribunal ‘is of the opinion that the person has provided a reasonable explanation for the delay in making the application’.

37. In ANQ at [30], the Administrative Decisions Tribunal set out the factors relevant to the exercise of the Tribunal’s discretion in section 57 as it applied at that time. These were summarised by the Administrative Decisions Tribunal in Jacobs at [29] as follows:

It is well established that other factors such as the merits of the case, the length of the delay, any prejudice to the parties, and the public interest in accepting the late application are all matters to be considered in the exercise of the discretion: see ANQ v Department of Attorney General and Justice, Corrective Services [2012] NSWADT 271 and Edwards v Department of Family and Community Services [2012] NSWADT 60.

38. In ANQ at [32], the Administrative Decisions Tribunal said:

In my view, for the purposes of the exercise of the discretion the expressions ‘reasonable excuse’ and ‘reasonable explanation’ are comparable expressions. …

39. In my opinion, expressions ‘reasonable excuse’ and ‘reasonable explanation’ are not necessarily comparable and should be construed in their respective legislative context.

40. On the coming into force of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) on 1 January 2014, the ‘Administrative Decisions Tribunal Act’ was renamed the ADR Act and section 57 was repealed: see Civil and Administrative Tribunal Amendment Act 2013 (NSW) (NCAT Amendment Act) (repealed) Schedule 2 clause [2] and [19]. At the same time, section 41 of the NCAT Act gave the Tribunal a wide discretion to extend time, which does not expressly contain a requirement of ‘reasonable excuse’ or ‘reasonable explanation’ for the delay. Instead, section 41 gives the Tribunal a discretion to extend time:

… [for] the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

41. It is accepted that the factors relevant to the exercise of the Tribunal’s discretion under section 41 of the NCAT Act are those set out by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson), at [22(3) and (4)] as follows:

(3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:

(a)The length of the delay;

(b)The reason for the delay;

(c)The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and

(d)The extent of any prejudice suffered by the respondent (to the appeal),

(4) It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable.

42. In my opinion, while factors such as those identified by the Appeal Panel in Jackson might also be relevant to the exercise of the Tribunal’s discretion under section 101(4) of the GIPA Act, unlike section 41 of the NCAT Act, section 101(4) Parliament has expressly provided that, in applications lodged with the Tribunal under the GIPA Act, the Tribunal is to exercise its discretion to extend time for the lodgement of such application only where the review applicant has provided a reasonable excuse for the delay in lodging his or her application. Hence, to that extent section 41 of the NCAT Act is inconsistent with section 101(4) of the GIPA Act.

43. Nevertheless, whether a review applicant has provided a reasonable excuse for the delay in lodging his or her application with the Tribunal, is ultimately a question of fact based on the circumstance of the case that is before the Tribunal.

Consideration

The information in issue

44. It is convenient to first deal with the information in issue in the applicant’s access application.

45. As I have noted above, the information for which the applicant sought access is contained in a three-page internal email exchange (sent on 29 and 30 June 2023) between two officers of the respondent. The subject matter of each email is ‘GIPA23/2367 – Telina Webb – Consultation regarding release of your personal information under the GIPA Act’.

46. The information that was withheld from the applicant is contained on page one of that email exchange (the withheld information). There is also a small deletion (withheld information) on the last page of the email exchange.

47. Withheld from the initial email sent on 29 June 2023 is the name of the officer who sent the email, the identifying email address of that officer, the position of that officer and the mobile telephone number of that officer. The name of the officer to whom that email was sent was initially withheld but disclosed subsequently after the applicant had successfully been granted access to that name in another access application she had made. The name of that officer is Amol Mane. However, the identifying email address of this officer continues to be withheld.

48. Deleted (withheld) from the email sent, in response, on 30 June 2023 is the identifying email address of Amol Mane, his position (other than his position as Information and Digital Services) and his mobile telephone number. Also deleted from this email is the name of the persons to whom the email was sent and the first paragraph of that email.

49. In his submissions the respondent notes that even if the public interest considerations against disclosure in item 1(g) and 3(f) of the table in section 14(2) of the GIPA Act were found not to apply, the Information Commissioner had accepted that his claim that the public interest considerations against disclosure in item 1(f), 3(a) and 3(b) of the table in section 14(2) was justified. And based on these public interest considerations against disclosure there remained, on balance, an overriding public interest against disclosure of the withheld information.

Length of Delay

50. Based on the applicant having been Notified, by email, of the Information Commissioner’s review report on the same day on which that report was finalised (22 December 2023), the time within which the applicant was to lodge her review application with the Tribunal commenced on 8 January 2024 and expired on 5 February 2024.

51. While the applicant has not formally acknowledged that she received notification of the respondent’s decision on 22 December 2023, she has expressly accepted the respondent’s calculation of her application to the Tribunal as being ten (10) days out of time.

52. That calculation was also based on the applicant having been notified of the Information Commissioner’s review report on 22 December 2023, which was a Friday. Christmas was the following Monday. This day and the following days, up to 5 January 2024 were not working days: see Premier’s Memorandum M2023-02 declaring the NSW government sector close-down for that Christmas/New Year period to be from 25 December 2023 to 5 January 2023.

Reasons for the delay

53. In her application for review the applicant said that the reason her application had been lodged out of time was because she ‘misinterpreted the last day for lodgement’. The applicant has not explained in what way she had misinterpreted the last day of lodgement.

54. Attached to her application for review was an email the applicant sent to the Information Commissioner on 14 February 2024 seeking advice as to the due date on which the respondent was to notify her as to whether it intended to conduct and internal review and the ‘last date for lodging an Application for Review with NCAT’. The applicant also attached a copy of the response she received from the Information Commissioner.

55. In that response, the Information Commissioner noted that the recommendations that had been made to the respondent in her report was not binding, and it was up to the agency to decide whether to follow or not follow the recommendation. The applicant was also advised that:

As mentioned in the last email correspondence from our office on the 22 December 2023, it states:

“an application for administrative review by the NSW Civil and Administrative Tribunal can be made at any time up to 20 working days from today.”

56. The Information Commissioner went on to say that in the applicant’s case, the 20 working days ended on 5 February 2024. I note that the Information Commissioner’s response to the applicant’s 14 February 2024 email was sent on 18 February 2024, and it was the following day that the applicant lodged her application for review with the Tribunal.

57. In the material provided by the applicant in support of her application for an extension of time is a copy of an email she sent to the respondent, on 18 January 2024 in which she said:

Good Afternoon, this email seeks Justice NSW’s indication of what course of action it intends to take further to the Commissioner’s report of 22 December 2023.

58. Included in the applicant’s material is a copy of the response she received from the respondent the following day (19 January 2024). In that response, the respondent said:

The Department has carefully considered the Information and Privacy Commission (IPC) review report in this matter.

The Department’s decision is that it will not be making a new decision.

I note that the information redacted is still substantially upheld by the recommendations report of IPC.

59. The applicant has not explained why, having been advised by the respondent that it was not going to conduct an internal review as recommended by the Information Commissioner, she did not lodge her application for review immediately after having received the response of the respondent, or why it took her almost a month to email the Information Commissioner if she had any concerns about the respondent’s response.

The merits of the applicant’s application

60. I understand that in her administrative review application, the applicant presses access to the entirety of the withheld information in the three-page email exchange.

61. If time is extended for the applicant to lodge her administrative review application, section 105(1) of the GIPA Act provides that the burden (onus) of establishing that the respondent’s decision to refuse access to the withheld information in the email exchange is justified lies on the respondent and not the applicant.

62. In this case, the Information Commissioner found, on the material before her, that the respondent’s decision, in its totality, is not justified because his reliance on the public interest considerations against disclosure in item 1(g) and 3(f) of the table to section 14(2) had not been established.

63. At the same time, the Information Commissioner found, on the material before her that the public interest considerations against disclosure in item 1(f) and 3(a) and 3(b) of the table to section 14(2) had been established. Hence, following the review report of the Information Commissioner, the question for the respondent was whether, in respect of each deletion (the withheld information), one or more of these public interest considerations against disclosure applied and if so whether, on balance, they outweighed the public interest consideration in favour of disclosure of the deletion.

64. It is the contention of the respondent that, based on the findings of the Information Commissioner, its decision concerning the withheld information would remain the same.

65. It is not for me to review this contention in this application for an extension of time, other than note the findings of the Information Commissioner and the recommendation that the respondent conduct an internal review. In this regard I note that the Information Commissioner did support the respondent’s decision in a number of respects, including the applicable public interest considerations in favour of disclosure, the public interest considerations against disclosure in that the withheld information could reasonably be expected to have the effect described in item 1(f) (prejudice the effective exercise by the respondent of its functions), 3(a) (reveal an individual’s personal information) and 3(b) (contravene an information protection principle under the Privacy and Personal Information Protection Act 1998) of the table to section 14(2) of the GIPA Act.

66. Based on these findings the Information Commissioner recommended that the respondent conduct an internal review.

67. At the same time, regardless of whether the respondent conducted an internal review as recommended, having received the review report of the Information Commissioner, it was for the applicant to decide, whether she remained aggrieved by the 29 August 2023 decision of the respondent in response to her 1 August 2023 access application. That decision needed to be made not only in the context of the review report but also in the context of the information she had already been granted access to.

68. It is evident from the information the applicant was granted access to that the withheld information is information about a person other than the applicant. Yet in her application for review the applicant’s grounds of review do not address this and merely state that she does not agree with the respondent’s application of the legislation and that the ‘IPC external review agrees’.

69. I am not critical of the applicant as she is not legally qualified. However, on the material before the Tribunal, in my view, on review, there is a strong likelihood that the 29 August 2023 decision of the respondent to refuse the applicant access to the deletions (withheld information) will be affirmed on the public interest grounds accepted by the Information Commissioner. This is especially so regarding the largest deletion (withheld information) that is in the body of the email of Amol Mane.

Prejudice

70. The applicant has not pointed to any prejudice if time is not extended for her to lodge her review application out of time. However, I accept that the applicant is prejudiced in that, if time is not extended, she loses the ability to have the decision of the respondent tested by the Tribunal. That of course is a matter of her own making.

71. Nor has the respondent identified any prejudice if time is extended, other than to say that the applicant has failed to provide a reasonable excuse for the delay in lodging her review application and that its decision would nevertheless remain the same.

Has the applicant provided a reasonable excuse for the delay in lodging her application for administrative review?

72. As noted above, the applicant’s excuse for the delay in lodging her application for administrative review is that she ‘misinterpreted the last day for lodgement’.

73. While I am not critical of the applicant, based on the material before me, I find that the applicant’s excuse for the delay in lodging her review application is not, in the circumstances of this case, a reasonable one because:

1. the strict time limits in dealing with an access application under the GIPA Act and when an access applicant is to lodge an application for review of a decision made about an access application evidences an intention by Parliament that access applications are to be dealt with in a systematic and timely manner that does not overbear on the resources of an agency in fulfilling its functions;

2. given the strict time limits, in my opinion the 10 day delay in lodging her review application is not insubstantial;

3. since about 2017, the applicant has exercised her right, under section 41 of the GIPA Act, to seek access to government information. In doing so the applicant has also exercised her right to have decision made by a government agency in response to her access application reviewed, internally, by the Information Commissioner and/or the Tribunal. That is, she is clearly familiar with the very prescriptive time frames contained within the GIPA Act for agencies when dealing with an access application made under that Act and the time frames within which an access application must lodge an application for internal review and external review;

4. in this case, the information for which the applicant sought access was not complex but very limited;

5. the respondent Notified the applicant of his decision concerning her access application within the prescribed time. Detailed reasons for that decision were also provided and the applicant was granted partial access to the information sought. An objective examination of the information for which access was granted, the nature of the redacted (withheld) information is easily inferred;

6. the applicant lodged her application for review by the Information Commissioner well within the time prescribed in section 90 of the GIPA Act. The Information Commissioner Notified, by email, the applicant of her review report on 22 December 2023. The review report set out in detail the findings of the Information Commissioner concerning the public interest considerations for and against the disclosure of the withheld information that had been relied on by the respondent in his decision of 29 August 2023;

7. the review report of the Information Commissioner expressly said that the applicant had 20 working days from the date of the review report to lodge an application for review by the Tribunal in the event she remained aggrieved by the decision of the respondent. It was clear from the terms of the review report that the applicant’s right to seek review by the Tribunal was not dependent on the respondent conducting an internal review as had been recommended by the Information Commissioner;

8. on 18 January 2024, the applicant emailed the respondent to ascertain whether he would undertake an internal review as recommended by the Information Commissioner – it is evident from the content of this email that the applicant understood that the respondent was not required to undertake an internal review. This was confirmed in the response the applicant received from the respondent the following day. That response also confirmed the position of the respondent that notwithstanding the findings of the Information Commissioner, the respondent was of the view that his decision was justified on the grounds that had been upheld by the Information Commissioner;

9. notwithstanding the 19 January 2024 response of the respondent, the applicant has not provided any explanation as to why she did not lodge her applicant for review before 5 February 2024. Nor has she explained why she delayed (almost one month) in sending the email she sent to the Information Commissioner on 14 February 2024 which was clearly outside the 20 working days since she had been notified by the Information Commissioner of her review report and the time within which she was to lodge a review application;

10. the applicant has not pointed to any prejudice that she will suffer if time is not extended, other than having the opportunity to have the 29 August 2023 decision of the respondent further reviewed; and

11. on the material before the Tribunal, there is a strong likelihood that the 29 August 2023 decision of the respondent to refuse the applicant access to the deletions (withheld information) will be affirmed on the public interest grounds accepted by the Information Commissioner.

Conclusion

74. For the reasons set out above, I have found that the applicant has failed to establish that she has a reasonable excuse for the delay in lodging her administrative review application with the Tribunal. Hence the appropriate order is to refuse the applicant’s application for an extension of time.

Orders

75. I make the following orders:

1. Pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) the Tribunal dispenses with a hearing in this matter.

2. Pursuant to section 64(1)(d) of the Civil and Administrative Tribunal Act 2013 the disclosure to the applicant, her legal representative and the public of the email exchange provided to the Tribunal by the respondent on a confidential basis is prohibited.

3. The applicant’s application for an extension of time to lodge her administrative review application is refused.

4. The applicant’s administrative review application is dismissed for want of jurisdiction.

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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: 10 February 2025