Information Access Case Note: DNM v NSW Ombudsman [2019] NSWCATAP 77

Read the full decision here: DNM v NSW Ombudsman [2019] NSWCATAP 77 

Summary

In this matter, the Appeal Panel upheld the decision of the Tribunal in DNM v NSW Ombudsman [2018] NSWCATAD 186. The decision concerned an access application under the Government Information (Information Access) Act 2009 (GIPA Act) for information about the agency’s monitoring function exercised under  the Public Interest Disclosures Act 1994 (PID Act). The Tribunal affirmed the agency’s decision that the access application was not a valid access application under section 43 of the GIPA Act because it sought access to ‘excluded information’. The Tribunal decided that the information related to the ‘complaint handling, investigative and reporting functions’ of the Office of the NSW Ombudsman, to which there is a conclusive presumption of an overriding public interest against disclosure of the information under clause 2 of Schedule 2 of the GIPA Act.

What you need to know

The decision considers excluded information of particular agencies in clause 2 of Schedule 2, specifically, the Ombudsman’s complaint handling, investigative and reporting functions (including any functions of the Ombudsman under the Community Services (Complaints, Reviews and Monitoring) Act 1993). The Note to Schedule 2 provides that information that relates to a function specified in  Schedule 2 in relation to an agency specified in the Schedule, is excluded information of the agency. Under clause 6 of Schedule 1, it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency.

The decision provides guidance on the meaning of ‘excluded information’, and confirms that the words ‘relates to a function’ in Schedule 2 are to be given their usual wide meaning. The decision also confirms that the issue of whether the information related to the agency’s functions in clause 2 of Schedule 2 is to be identified broadly, by asking whether the requested information relates to the excluded information functions of the agency.

As a secondary matter, the Tribunal had determined that the statutory language of the agency’s function under section 6B(1)(e) of the PID Act conferred a single function, rather than two functions. under which the Ombudsman is empowered to monitor public interest disclosures. However, the Appeal Panel considered this to be an unnecessary question. 

Legislative background

GIPA Act

Section 43 Access application cannot be made for excluded information

Section 80(a) reviewable decision that an application is not a valid access application

Schedule 2 Excluded information of particular agencies

Clause 2 of Schedule 2 Complaints handling and investigative information (The Office of Ombudsman)

Schedule 4 definition of ‘excluded information’

Review requirements and jurisdiction

Section 82 Right of internal review

Section 89 Right to have decision reviewed by Information Commissioner

Section 100 Administrative review of decision by NCAT

PID Act 

Section 6B Oversight of Act by Ombudsman

Factual background

The decision is an appeal from an administrative review which affirmed the agency’s decision that the access application was invalid because it was an application for ‘excluded information’ under section 43 of the GIPA Act. The application requested access to all records held by the NSW Ombudsman relating to the monitoring exercise undertaken, as communicated by the Deputy Ombudsman’s letter to DNM dated 24 June 2014. That letter referred to several public interest disclosures (PIDs), complaints and requests that DNM had made to a public sector agency; and also advised that the Ombudsman would be exercising its ‘monitoring power’ to monitor the manner in which that agency assesses and handles PIDs and purported PIDs made to it.

Tribunal findings

The Appeal Panel found no error of law in the Tribunal’s decision that:

• the words ‘relates to a function’ in the definition of ‘excluded information’ in Schedule 4 of the GIPA Act (and in the notes to Schedule 2 and section 43) should be given their usual wide meaning; and
• the information requested by the access application relates to the Ombudsman’s excluded functions specified in clause 2 of Schedule 2.   

The Appeal Panel considered two statutory construction grounds of appeal (at [32]-[36]), being the identification of the issue, and the meaning of ‘related to’.

In identifying the issue for appeal, the appellant contended that there are two separate functions in section 6B(1)(e) of the PID Act, and expressed this ground as the question of whether the use of the word ’and’ in the phrase ’to monitor and provide reports (monitoring reports) . . . ’ is conjunctive or disjunctive, was the wrong question. According to DNM, the correct question is whether there was a link between the functions of monitoring and reporting in the 2014 monitoring exercise (at [34]).

The Appeal Panel considered that although the Tribunal made the correct decision, it asked itself the unnecessary question of whether section 6B(1)(e) of the PID Act conferred one or two functions (at [35]). The Appeal Panel (at [32]) considered that the Tribunal engaged in a two-step reasoning process:

• First, the Tribunal identified the issue as being whether the PID monitoring and reporting function in 6B(1)(e) was a single function or two separate functions.
• Having found that it was a single function, the Tribunal went on to determine whether the requested information related to the ’reporting function’ and was therefore excluded information.

The Appeal Panel considered that the Tribunal should have identified the issue more broadly, by asking whether the requested information relates to the Ombudsman’s complaint handling, investigative and reporting functions (including any functions of the Ombudsman under the Community Services (Complaints, Reviews and Monitoring) Act 1993), rather than first determining whether the function in the PID Act was a single or two separate functions (at [35]). The Appeal Panel noted that the Information Commissioner set out the approach in this way (at [35]).

In considering the meaning of ‘relates to a function’ in Schedule 2, the Appeal Panel noted the Tribunal’s approach (at [56]-[57]) of the 2018 first instance decision:

… There is agreement among the parties that the words ‘relates to a function” in the note to Schedule 2 should be given it usual wide meaning: see Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 at [59], and Sinclair v Psychology Council [2017] NSWCATAD 8 at [71]. I accept that is the case. I accept that the information DNM requested in his access application, being, “All records your office holds relating to the monitoring exercise undertake by your office as communicated by letter of 24 June 2014”, relates to the function given to the Ombudsman by section 6B(1)(e) of the PIDA Act

As a consequence, that information is excluded information for the purposes of the GIPA Act and DNM’s access application is invalid.

The Appeal Panel (at 36) noted:

At [56] the Tribunal gave the words ‘relates to’ any function in the definition of ’excluded information’ their ’usual wide meaning’ While that expression has been held to be ’of broad import’, the context will determine the matters to which it extends: O’Grady v Northern Queensland Co Ltd [1990] HCA 16; (1990) 169 CLR 356 at 374; Workers’ Compensation Board of Queensland v Technical Products Pty Ltd [1998] HCA 49; (1988) 165 CLR 642 at 653. As French CJ and Hayne J held in Travelex Ltd v Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 at [25], the context includes both the legislative context and the factual context:

It may also be accepted that ‘the subject matter of the enquiry, the legislative history, and the facts of the case’ are all matters that will bear upon the judgment of what relationship must be shown in order to conclude that . . . (there is the necessary degree of connection) (Words in brackets added.)

 The Appeal Panel explained the effect of clause 2 of Schedule 2 (at [51]-[53]):

The statutory purpose of the definition of excluded information is to restrict or prohibit access to government information when there is an overriding public interest against disclosure such as the public interest in delivering responsible and effective government.

The ‘complaint handling, investigative and reporting’ functions are generic descriptions. When the Ombudsman monitors compliance with legislation by public authorities, he is gathering information to ensure that the public authority is fulfilling its functions. That information is excluded information because it is sufficiently related to Ombudsman’s ‘complaint handling, investigative and reporting functions’.

Tribunal outcome

The Appeal Panel found Tribunal was correct to conclude that the information ‘relates to’ the Ombudsman’s complaint handling, investigative and reporting functions’, and the appeal was dismissed.