Access to Government Info Appeal Rejected by NSW Civil and Administrative Tribunal

The Tribunal reviewed an appeal concerning access to government information under the GIPA Act. The Tribunal affirmed the Commissioner's decision that no further relevant information was held beyond what was initially provided.

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: [NAME] v Commissioner of Police, NSW Police Force [2018] NSWCATAP 145 Hearing dates: 25 May 2018 Date of orders: 06 June 2018 Decision date: 06 June 2018 Jurisdiction: Appeal Panel Before: [NAME], Deputy President J Currie, Senior Member Decision:

1. The appeal is dismissed. Catchwords: APPEAL –– access to government information - role of Tribunal when reviewing an administratively reviewable decision – whether the Tribunal is reviewing a decision on the basis of the factual material before the administrator or on the basis of the factual material before the Tribunal – whether agency is obliged to give the Tribunal a copy of all the information to which the applicant has been given access Legislation Cited: Administrative Decisions Review Act 1997 (NSW), s 63(1)(a) Civil and Administrative Tribunal Act 2013 (NSW), s 80(2)(b) Government Information (Public Access) Act 2009 (NSW),s 100 and s 80 Category: Principal judgment Parties: [NAME] (Appellant) Commissioner of Police, NSW Police Force (Respondent) Representation: [NAME] (agent for Appellant) [NAME] (Respondent) File Number(s): AP 18/15409 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: [2018] NSWCATAD 50 Date of Decision: 01 March 2018 Before: [NAME], Senior Member File Number(s): 2017/00337731

REASONs FOR

DECISION 1. [NAME] applied to the Commissioner of Police, NSW Police Force for access to information under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The Commissioner provided him with access to certain information. [NAME] applied to the Tribunal for a review of the Commissioner's implied decision that it did not hold any information other than the information he had already provided: GIPA Act, s 100 and s 80(e). [NAME]'s application to the Tribunal, the Commissioner provided him with additional documents. The Commissioner did not provide the additional documents to the Tribunal.

2. The Tribunal decided that the Commissioner did not hold any more information responsive to [NAME]'s application, apart from the information that had already been provided to him. The Tribunal affirmed the Commissioner's implied decision. 3. [NAME] has appealed to the Appeal Panel from the Tribunal's decision. He did not identify a question of law but asked the Appeal Panel for permission to appeal on grounds other than a question of law: Civil and Administrative Tribunal Act 2013 (NSW), s 80(2)(b). [NAME] expressed the issue on appeal to be whether the additional documents released to him after he lodged an application with the Tribunal, should have been released to him when the Commissioner made the internal review decision. If those documents should have been released at that stage, he submitted that the Tribunal's decision was not correct because the Commissioner did hold other relevant documents when it made its internal review decision. 4. [NAME] also asked for permission to appeal on the ground that the Commissioner should have given the Tribunal the further information.

5. The Tribunal only has the specific powers given to it by legislation. Under the GIPA Act it has power to review certain decisions made by an agency: GIPA Act, s 100 and s 80. One of those decisions is "a decision that government information is not held by the agency": GIPA Act, s 80(e). The parties agreed that the application was for a review of the Commissioner's implicit decision that he did not hold any information other than the information which had already been provided.

6. The Tribunal's role when reviewing a decision is "to decide what the correct and preferable decision is having regard to the material then before it, including … any relevant factual material": Administrative Decisions Review Act 1997 (NSW), s 63(1)(a) (Emphasis added.) The Tribunal did not have the additional documents before it at the time it made its decision. The Commissioner was not obliged to provide the Tribunal with those documents because the Tribunal had not made a direction for it to do so.

7. Even though the Tribunal did not have the additional documents before it, both parties agreed that those documents had been provided to [NAME] after he applied to the Tribunal. The parties also agreed that the Commissioner did not hold any further information responsive to [NAME]'s application. It follows that the correct decision was that the Commissioner did not hold any more government information. The Tribunal did not make any legal or factual error by affirming the Commissioner's implied decision to that effect. Consequently, [NAME] has not identified an error of law and leave is refused for him to appeal on a question other than a question of law.

Order 1. The appeal is dismissed.

********** 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

Amendments 06 June 2018 - Initial of [NAME], Deputy President removed as per Supreme Court of NSW Judgement Production Guidelines DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 June 2018