Taylor v Destination NSW [2020] NSWCATAD 137

Read the decision here:  Taylor v Destination NSW [2020] NSWCATAD 137

Summary

In this 2020 decision, the Tribunal made its determination following orders it made on 27 August 2018 in Taylor v Office of Destination NSW [2018] NSWCATAD 195 (“2018 decision”) concerning whether to refer Destination NSW to the Information Commissioner, pursuant to section 111 of the Government Information (Public Access) Act 2009 (GIPA Act), in relation to systemic agency compliance issues with the GIPA Act. In the orders made in the 2018 decision, the Tribunal directed the parties to file and serve concurrent written submissions on the referral of the Respondent, Destination NSW, to the NSW Ombudsman or Information Commissioner. In its decision (at [36]), the Tribunal agreed with the submission by Destination NSW that a referral to the Information Commissioner is more appropriate than a referral to the NSW Ombudsman. The Tribunal (at [37]) determined that it is appropriate to refer Destination NSW to the Information Commissioner for assistance in understanding and complying with its obligations under the GIPA Act, particularly in determining access applications.   

What you need to know

The decision identifies the types of deficiencies in an agency’s decision-making under the GIPA Act which can be found to reveal systemic issues with the agency’s compliance with the Act.

The decision highlights the specialist role and functions of the Information Commissioner in ensuring compliance with the GIPA Act, and confirms that a referral to the Commissioner under section 111 is directed at assisting agencies in connection with the exercise of their functions under the GIPA Act.

Legislative background

GIPA Act

Section 111 Referral of systemic issues to Information Commissioner

Section 17(c) Information Commissioner’s function to assist agencies in connection with the exercise of their functions under the GIPA Act 

Section 17(g) Information Commissioner’s function to monitor, audit and report on the exercise by agencies of their functions under, and compliance with, the GIPA Act

Section 16 requirement on agencies to provide advice and assistance

Factual background

The Tribunal (at [14]-[17]) of its 2020 decision considered the administrative review history and orders made in the various decisions. The 2018 orders were made after the Tribunal had remitted the matter to Destination NSW in Taylor v Destination NSW [2017] NSWCATAD 272 (“2017 decision”). In the 2017 decision, the Tribunal had found that Destination NSW had failed in its obligations to consult third parties under section 54, incorrectly approached the application of section 13 to categories of documents instead of information; and had applied the public interest considerations against disclosure in section 14 without filing evidence to support the claims. At [15], the Tribunal stated that the 2018 orders for Destination NSW were what the Tribunal “considered necessary to ensure compliance with the GIPA Act”, including to confirm that the 79 documents produced confidentially to the Tribunal comprised all available information sought by the access application; to engage in consultation with all relevant third parties to the information sought by the access application; and to issue a reconsideration determination.

In the 2018 proceedings, the applicant, Mr Taylor, and the Information Commissioner filed submissions on the issue of referral under section 111 of the GIPA Act. In Destination NSW’s appeal of the 2018 decision in Destination NSW v Taylor [2019] NSWCATAP 123, the Appeal Panel directed the Tribunal Registry to list the matter for directions to case manage the issue as to whether any matter should be referred to the NSW Ombudsman or the Information Commissioner. The Respondent provided submissions on 31 July 2019, addressing the question of whether it should be referred to the NSW Ombudsman or the Information Commissioner in relation to any matters arising from the Respondent’s handling of the Applicant’s access application under the GIPA Act, and also filed an affidavit dated 22 July 2019.

Tribunal findings

The Tribunal (at [10]-[12]) discussed the purpose and scope of its jurisdiction under section 111 of the GIPA Act, and stated:

• a referral under section 111 applies to a matter that indicates a systemic issue relating to the 'determination of access applications'
• previously, the consideration of a discrete issue about how an agency has dealt with particular information (such as its manner of recording and maintaining CCTV footage), has not been considered to be a systemic issue for which the Tribunal will refer to the Information Commissioner: Shoebridge v Commissioner of Police, NSW Police Force [2013] NSWADT 302 at [61-62]
• section 111 does not give the Tribunal power to carry out an inquiry into an agency's conduct that is separate from, or additional to, any administrative review proceedings: Zonnevylle v Department of Justice [2019] NSWCATAP 44 at [52]
• allegations of a breach of the GIPA Act, including systemic breaches of the GIPA Act, do not provide a source of jurisdiction for the Tribunal: Zonnevylle v Minister for Education [2019] NSWCATAD 28 at [58].

The Tribunal (at [32]) stated that:

“… The Tribunal only needs to find that there is an indication or a possibility that a systemic issue exists. Any investigation or audit to confirm the existence of the systemic issue follows the referral, at the discretion of the Information Commissioner, once the agency has been referred.”

In considering the affidavit evidence of Destination NSW, the Tribunal (at [29]) considered that whilst:

“… evidence of his ‘usual practice when processing access applications’ does not demonstrate the existence of any systemic issues, the remainder of his evidence does not support a finding that this was, in fact, his usual practice. The Respondent’s submission that these errors were limited to this application and were not indicative of the Respondent’s systems cannot be sustained in circumstances where, on [the] evidence, the manual for dealing with access applications requires review and updating because it erroneously contains ‘an approach to assessing public interest considerations against disclosure based on categories or types of information’, and this application is ‘the first time that the Respondent has been subject to review in the Tribunal in relation to its processing of GIPA access applications’[The] evidence supports a finding that, on balance, it is likely that other access applications were previously dealt with similarly and it was, in fact, a systemic issue.”

In considering whether to exercise its jurisdiction under section 111 with respect to Destination NSW, the Tribunal (at [33]) considered that the Respondent had demonstrated an “erroneous approach” in the following ways:

• in assessing categories of information or documents rather than the information itself
• in its determination to not conduct certain searches on an assumption there would be overriding considerations against disclosure
• its failure to provide evidence of what searches were conducted would qualify as systemic issues, with its reliance on an ‘outdated’ Manual that further supported a finding that these issues were systemic, rather than confined to this single application.

The Tribunal (at [33]) did accept the Respondent’s evidence of its efforts since the decisions in this matter to improve its compliance with the GIPA Act, and to improve its policies and procedures. However, the Tribunal did not consider that “either of these factors makes a referral unnecessary or lacking utility.”

The Tribunal (at [35]) opined that:

“The referral to the Information Commissioner is not a punishment. The Information Commissioner’s monitoring and audit functions under the GIPA Act are directed to assisting agencies in connection with the exercise of their functions under the GIPA Act (section 17(c)); and to monitor, audit and report on the exercise by agencies of their functions under, and compliance with, the GIPA Act (section 17(g)). I agree with the Information Commissioner’s submissions that she is well placed to assist the Respondent in addressing the systemic issues that have been identified by the Tribunal in the course of these proceedings, on the basis of a comprehensive regulatory framework and in accordance with her specialist role and powers under the Government Information (Information Commissioner) Act 2009 (‘the GIIC Act’).”

Tribunal outcome

The Tribunal (at [37]) considered that it is appropriate to refer the Respondent to the Information Commissioner for assistance in understanding and complying with its obligations under the GIPA Act, particularly in determining access applications. The Tribunal ordered that the Respondent is referred to the Information Commissioner pursuant to section 111 of the GIPA Act in relation to the systemic issues identified in these proceedings.