Office of Environment and Heritage v Scenic NSW Pty Ltd [2019] NSWCATAP 176

Read the decision here: Office of Environment and Heritage v Scenic NSW Pty Ltd [2019] NSWCATAP 176

Summary

The Appeal Panel has set aside the decision of the Tribunal in Scenic NSW Pty Ltd v Office of Environment & Heritage [2019] NSWCATAD 7. The decision considers whether notice by an agency to an access applicant, that information to which access has been granted is to be withheld pending the exercise of third party review rights, is a reviewable decision under Part 5 of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The Tribunal found the relevant communication was simply an acknowledgment by the agency as to the operation of sections 54(6) and (7) of the GIPA Act, and not a reviewable decision under sections 80 and 100 of the Act. Therefore, the Tribunal did not have jurisdiction to undertake the review and the underlying administrative review application was dismissed.

What you need to know

Where an access application is made for information that relates to a third party, such as their personal or business information, an agency may need to consult with the third party under section 54 of the GIPA Act. If the third party objects to the disclosure of their information and the agency decides to provide access in response to the application, the agency must withhold the information until the third party’s review rights under Part 5 of the GIPA Act have expired and any review applied for has been finalised (sections 54(6) and (7) of the GIPA Act).

The obligation on an agency to withhold access to information it has decided to release, protects third party rights of review. The decision of the Appeal Panel confirms that this is not a decision that can be reviewed under the GIPA Act. In particular, it is not a decision to defer providing access, which has a specific meaning under section 78 of the GIPA Act.

The Tribunal does not have general authority to review all administrative decisions. It only has administrative review jurisdiction where enabling legislation says it does (section 9 of the Administrative Decisions Review Act 1997 (NSW); section 30 of the Civil and Administrative Tribunal Act 2013 (NSW)).

Section 80 of the GIPA Act sets out the ‘reviewable decisions’ of an agency in respect of an access application that are reviewable by the Tribunal under section 100 of the GIPA Act. Two of these are:

• a decision to provide access or to refuse to provide access to information in response to an access application (section 80(d))
• a decision to defer the provision of access to information in response to an access application (section 80(h)).

Section 78(1) of the GIPA Act contains an exhaustive statement of when access can be deferred in order to enliven review rights in respect of a decision under section 80(h). Circumstances include, for example, where information is contained in a record prepared for presentation to Parliament but is yet to be presented (section 78(1)(b)). Other than under section 78, there is no basis under the GIPA Act to decide to defer the provision of access where an agency has decided to provide access to information to an applicant in accordance with section 58(1)(a).

Section 88 of the GIPA Act provides that a person is not entitled to an internal review of a decision made on the internal review of a reviewable decision. The Appeal Panel’s decision confirms that this provision prevents a third party consulted under section 54 of the GIPA Act from seeking a further internal review, even in circumstances where the applicant for access to government information has exercised their right to seek an internal review of the initial decision and the agency has decided to release further information. The third party can still apply for review by the Information Commissioner under section 89 of the GIPA Act or to the Tribunal under section 100 of the GIPA Act.

Legislative background

GIPA Act

Section 54 Consultation on public interest considerations

Section 58(1) How applications are decided

Section 78(1) Deferral of access

Section 80 Which decisions are reviewable decisions

Section 88 No internal review of decision on internal review

Section 100 Administrative review of decision by NCAT

Factual background and decision under appeal

Scenic sought access to information held by the Office of Environment and Heritage (OEH). In dealing with the application, the OEH consulted with third parties under section 54 of the GIPA Act who objected to release of information (the Objectors). On 17 October 2017, following an internal review sought by Scenic, the OEH decided to release some of the information despite the objection of the Objectors. The OEH advised the Objectors they could seek internal review and external review by the Tribunal.

The Objectors applied for internal review. Scenic made an application for administrative review by the Tribunal, which was subsequently withdrawn. OEH then advised the Objectors that they could not apply for internal review but that they could seek an extension of time to apply to the Tribunal for a review. The Objectors instead sought review by the Information Commissioner who accepted the review application as valid.

On 25 May 2018, the OEH advised Scenic that pending completion of the review by the Information Commissioner it would not provide access to the information it had decided to provide on 17 October 2017.

Scenic then sought review in the Tribunal on the basis that the OEH had refused to provide access to information in accordance with its own internal review decision. In the alternative, it submitted that the decision to delay access was a decision to defer access. Scenic argued that the review sought by the Objectors to the Information Commissioner was out of time, and the Information Commissioner did not have the power to extend time to apply for a review under section 90 of the GIPA Act.

At first instance, the Tribunal found that the delay in providing actual access in accordance with the OEH’s decision was not a refusal to provide access to the information in response to an access application within the meaning of section 80(d) of the GIPA Act, but was a purported decision to defer the provision of access to information in accordance with section 78 (a reviewable decision under section 80(h)). Given that the third parties’ review rights had expired and section 78 did not apply in the circumstances, the Tribunal found there was no basis to withhold or defer the provision of information.

The Tribunal at first instance also considered the operation of section 88 of the GIPA Act and found that the Objectors had the right to seek further internal review of the internal review decision of 17 October 2017, even though the decision had already been internally reviewed by the OEH.

The OEH appealed the decision of the Tribunal.

Appeal Panel findings

The OEH raised four grounds of review, including that the Tribunal had erred in finding there was a relevant ‘reviewable decision’ by which Scenic was aggrieved for the purpose of sections 80 and 100 of the GIPA Act (Ground 2). This ground was upheld.

The Appeal Panel found that the communication to Scenic of 25 May 2018 was an acknowledgement as to the operation of sections 54(6) and (7) of the GIPA Act, and compliance with those provisions required the OEH to refrain from providing access in accordance with its decision of 17 October 2017. There had been no decision under section 78 of the GIPA Act to defer the provision of access to information in response to an access application. The Appeal Panel confirmed that the decision by the Information Commissioner to accept an application for review as a valid application is not a reviewable decision under the GIPA Act.

Therefore, the Tribunal had erred by proceeding to determine the substantive issues raised by the application for review, rather than determining that it had no jurisdiction (Ground 1).

The Appeal Panel also upheld the appeal on the ground that the Tribunal erred in its interpretation of section 88 of the GIPA Act, since it determined that the Objectors had a right to seek internal review of the OEH’s internal review decision of 17 October 2017 (Ground 3).

The Appeal Panel found that section 88 bars ‘any person’ from seeking a further internal review.

Appeal outcome

The Appeal Panel upheld the appeal on three grounds (Grounds 1, 2 and 3) and set aside the decision of the Tribunal in Scenic NSW Pty Ltd v Office of Environment & Heritage [2019] NSWCATAD 7 (to set aside the decision to defer access to the information and remit the matter to the OEH for reconsideration). Scenic’s application for review was dismissed.