Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 126

Read the decision here: Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 126  

Summary

The Appeal Panel upheld the Appellant’s (Department of Communities and Justice (DOCJ)) appeal on the Tribunal’s administrative review decision in Zonnevylle v NSW Department of Justice [2019] NSWCATAD 215 (22 October 2019). That decision concerned the Department’s decision that the application for government information was not a valid access application under section 41 of the Government Information (Public Access) Act 2009 (GIPA Act). The access application included an attachment of seven pages and identified information sought according to ten numbered paragraphs, under which the applicant identified a list of documents (Appendix 2 to the Appeal Panel’s decision). The Department identified documents under “sub-clause 10(c)” as not containing sufficient information as is reasonably necessary to enable the government information applied for to be identified. The Appeal Panel considered the Tribunal’s decision to set aside the Department’s decision that the access application was not a valid access application, except for the list of documents in sub-clause 10(c)(xiii), which were invalid. In its decision at first instance the Tribunal concluded that an application which, in a severable part, does not include sufficient information to enable the government information applied for to be identified, is not thereby wholly invalid.  

What you need to know

The Appeal Panel decision confirms that an application for government information cannot be severed into both valid and invalid parts because an application must comply with all of the requirements in section 41(1)(a)-(e) to be a valid ‘access application’ within the meaning of section 4 of the GIPA Act. The words “the government information” in section 41(1)(e) mean all the requested government information, not a severable part of that information.

When making the initial decision as to validity under section 51, an agency is required to consider the validity of any communication that appears to be intended to be an access application even if, on closer scrutiny, it is not a valid access application because it does not comply with any one of the formal requirements. 

Agencies must undertake the steps set out in section 52 to assist a person to make a valid application. If the application is invalid because the applicant has failed to provide required information, the agency must invite the applicant to provide the information. The application becomes a valid access application if the applicant provides the required information.

Legislative background

GIPA Act

Section 3 objects of the GIPA Act

Section 9 legally enforceable right to access to information

Section 41 how to make a valid access application

Section 43 application cannot be made for excluded information

Section 44 transfer of access applications

Section 51 initial decision as to validity of application

Section 52 agency assistance with invalid applications

Section 58 how access applications are decided

Review of decision

Section 80(2)(b) Civil and Administrative Tribunal Act 2013 (leave to appeal on grounds on a question of law)

Factual background

Access application

The access applicant sought information about his previous applications and complaints to the NCAT, as well as policy documents and statistical data about NCAT Members and officers. Paragraph 10 of the application was titled “Other Documents/information Required as Statistics/Excel records for” and included three sub-paragraphs, with sub-paragraph 10(c)(xiii))(set out at Appendix A to the appeal decision).  The Department acknowledged receipt of the application as a valid application, however, the Department later decided that the application received on 5 September 2018 was not a valid access application. The Department requested the applicant to clarify the information that he sought and closed the file after it did not receive a response to this request.  

Tribunal review

The applicant applied for administrative review of the Department’s invalidity decision.  The Tribunal identified the issue relevant to its  determination as whether an access application should be held invalid because of a failure to comply with section 41(1)(e) in circumstances where only part of the application does not include such information as is reasonably necessary to enable the government information applied for to be identified. The Tribunal decided that the three items of information at clause 10(c)(xiii) did not comply with “the requirement to identify the government information” in section 41(1)(e). The Tribunal determined that an application which, in a severable part, does not include sufficient information to enable the government information applied for to be identified is not thereby wholly invalid (at [27]).

Appeal

The Department appealed the decision on the basis that the Tribunal erred in finding that an application which, in a severable part, does not include sufficient information to enable the government information applied for to be identified is not thereby wholly invalid (at [3]). The issue in the appeal is whether ‘the government information’ in section 41(1)(e) means all the requested government information or a severable part of that information (at [3]). 

Appeal Panel findings

On the ground of appeal, the Appeal Panel found an error of law in the Tribunal’s decision. The Appeal Panel found that “The words ‘the government information’ in section 41(1)(e) of the GIPA Act mean all the requested government information, not a severable part of that information” (at [9]).

The Appeal Panel (at [32]-[41]) set out its analysis for its statutory interpretation and a purposive construction of the text of the requirements under section 41 of the GIPA Act. The Appeal Panel concluded that:

• On a plain reading of the text of section 41(1), each of the requirements at paragraphs (a) – (e) must be complied with (at [37])
• The plain meaning of the words “the government information” in s 41(1)(e) is all the government information applied for. Parliament has not identified a sub-set of the government information applied for which should be carved out from the application (at [39]).

The Appeal Panel summarised its conclusion (at [43]):

“We have concluded from the overall context that the purpose of section 41(1)(e) is to provide certainty as to when the ‘legally enforceable right’ to be provided with access to government information arises. That right arises when a person makes a valid access application: sections  4, 9 and 41. The requirement to identify the government information ensures that an agency has sufficient information to enable it to identify, consider and make a decision about the government information applied for.”

The Appeal Panel (at [44]) determined that there is no power given to an agency by section 51, or by any other provision in Part 4, to treat any application which does not comply with the requirement to identify the government information, as partly valid and partly invalid. The Appeal Panel went on to say that “that situation may be contrasted with other provisions in Part 4, which do provide for an application to be split (for example, sections 43 and 44)”.

The Appeal Panel confirmed that the consideration of validity is a two-step process, being firstly to determine whether “it appears that the application is intended to be an access application”; and secondly, to decide whether the application is a valid application (at [46]). The Appeal Panel stated (at [48]) that:

“In our view there is a legitimate purpose in including the words ‘appears is intended to be an access application’ in section 51(1). Those words ensure that an agency considers the validity of any communication that appears to be intended to be an access application even if, on closer scrutiny, it is not a valid access application because it does not comply with any one of the formal requirements. Nothing in section 51 suggests that an applicant must not comply strictly with section 41(1)(b).”

In considering section 43, the Appeal Panel considered that there is no corresponding express provision in section 41(1) like in section 43(2), which expressly provides that, to the extent that such an application is made (for excluded information), the application is invalid (at [50]). The Appeal Panel stated its view that “If Parliament’s intention was to make an application invalid, but only to the extent that the application does not include sufficient information, it would have used the same or similar words to those used in section 43(2)” (at [50]).

Similarly for section 44, the Appeal Panel (at [51]) concluded that while section 44 permits an agency to “split an application into 2 or more applications” for the purposes of transferring only part of an access application, “if Parliament’s intention was to split an application which partly complied with the requirement to identify the government information, it would have used the same or similar words in section 41 to those used in section 44 (at [51]).

With respect to section 58(2), which permits an agency to make more than one decision, the Appeal Panel considered that this section applies to “access applications”, that is, applications that have been accepted as valid under Part 4 of the GIPA Act. The Appeal Panel stated (at [54]):

“Section 51(1) does not contain a similar provision allowing more than one decision to be made about the validity of various items in an application. If Parliament’s intention was that an agency could make more than one decision as to the validity of an application, it would have used the same or similar words to section 58(2)”.

The Appeal Panel did not deal with the Information Commissioner’s submissions on the amendment to the GIPA Act in November 2018 that introduced subsection (2) to section 44. Section 44(2) provides that:

An agency may, for the purposes of transferring only part of an access application, split an application into 2 or more applications. Any resulting application is to be treated as a separate application by the applicant.

Tribunal outcome

The Appeal Panel upheld the appeal and affirmed the decision by the Department of Communities and Justice that the application for access to government information received on 5 September 2018, is invalid. The Appeal Panel set aside the orders of the Tribunal of 22 October 2019.