Ruyters v Commissioner of Police [2020] NSWCATAD 223
Read the full decision here: Ruyters v Commissioner of Police [2020] NSWCATAD 223
Summary
The Tribunal reviewed the decision made by the Commissioner of Police (respondent) under section 58(1)(e) of the Government Information (Public Access) Act 2009 (GIPA Act) to refuse to deal with the applicant’s application for information because dealing with the application would require an unreasonable and substantial diversion of the agency’s resources. The applicant sought VHS cassette tapes, which the respondent identified as 110 tapes containing audio recordings each of six hours duration that would take 624 hours to listen to, as well as further time required to deal with the information through making redactions and consulting third parties. The Tribunal (at [57]) concluded that the time required to adequately deal with the application would far exceed 624 hours and that the respondent would be unable to comply with the decision period of 20 working days under section 57 of the GIPA Act. In considering the application of subsections 60(3A) and 60(3B) to the decision process under section 60(1)(a), the Tribunal (at [59]) accepted that there was a general public interest in favour of disclosure of the information, but the applicant failed to establish the demonstrable importance of the information to her. The Tribunal (at [60]) found that dealing with the application would require an unreasonable and substantial diversion of the Commissioner’s resources and that the correct preferable decision was to refuse to deal with the application pursuant to s 60(1)(a) of the GIPA Act.
What you need to know
The decision interprets and applies sections 60(3A) and 60(3B) which were inserted into the GIPA Act in November 2018, and the considerations to be demonstrated by an agency in refusing to deal with an access application pursuant to section 60(1)(a).
In relying on section 60(1)(a) to refuse to deal with an access application in whole or in part, an agency is required to apply the considerations listed under section 60(3A) and these must, on balance, be found to outweigh the matters listed under 60(3B). These matters are the “general public interest in favour of disclosure of the information”, and the demonstrable importance of the information to the applicant.
The Tribunal (at [15]) considered that section 60(3A) provides non-exhaustive factors, so that other considerations may also be relevant. The express reference to the “agency’s size and resources” makes clear that this is a relevant consideration which may be taken into account by the Tribunal on review.
The Tribunal (at [45]) confirmed that the phrase “general public interest” in section 60(3B)(a) indicates the inherent public interest in the disclosure of government information that is given consideration for the purposes of section 12(1) of the GIPA Act.
Legislative background
Section 80(c) review of a decision to refuse to deal with an application
Section 60(1)(a) refuse to deal with the application where dealing with the application would require an unreasonable and substantial diversion of the agency’s resources
Section 60(3A) factors to be taken into account by agency
Section 60(3B) factors under section 60(3A) must outweigh general public interest in favour of disclosure and demonstrable importance of the information to the applicant
Section 100 Administrative review of decision by NCAT
Factual background
The applicant represented the Bridge of Hope Innocence Initiative, and with the consent of Ms Keli Lane who was convicted of the murder of her daughter in 2010, made an access application to the Commissioner of Police under the GIPA Act. The information the subject of the access application was in the form of recordings of Ms Lane’s conversations. The respondent invited the applicant to refine the application in light of the number and length of tapes falling within the scope of the access application. The applicant did not refine the scope of the request. On 2 May 2020, the Commissioner made a decision to refuse to deal with the application pursuant to section 60(1)(a) of the GIPA Act. The applicant sought internal review and the decision was affirmed by the respondent’s review. The applicant then sought administrative review by the NCAT. The Information Commissioner exercised her right to appear and be heard under section 104(1) of the GIPA Act and made written and oral submissions.
Tribunal findings
The Tribunal provided the following views on the application of section 60(3A) and 60(3B) in an assessment under section 60(1)(a) of the GIPA Act:
- the factors to be considered in an assessment of whether an application would require an unreasonable and substantial diversion of an agency’s resources set out in Cianfrano v Director General, Premier's Department [2006] NSWADT 137, and later in Colefax v Department of Education and Communities (No. 2) [2013] NSWADT 130, remain relevant (at [17]-[18]);
- any consideration in section 60(3A), which the Tribunal described as “considerations which broadly relate to the burden on an agency of processing the request”, must, on balance, outweigh the general public interest in favour of disclosure and the demonstrable importance of the information to the applicant (at [20]);
- the task to be undertaken by the Tribunal in balancing the considerations in sections 60(3A) and 60(3B) is similar to that which the Tribunal routinely undertakes in applying the public interest test in section 13 of the GIPA Act. It is only where the matters in section 60(3A) outweigh those in section 60(3B) that an agency can refuse to deal with an access application on the basis that it would require an unreasonable and substantial diversion of an agency’s resources (at [23]-[24]);
- The express reference to “the agency’s size and resources” included in s 60(3A) now makes clear that whether the agency in question is large and well-resourced will generally be a relevant consideration which may be taken into account by the Tribunal in determining matters under section 60(1)(a).
In considering the meaning of the phrase “the general public interest” in section 60(3B)(a), the Tribunal (at [44]-[45]) considered that:
The term “general public interest” … occurs elsewhere in the GIPA Act most notably in section 12(1). The courts have long held that where a word is used consistently in legislation it should be given the same meaning. As was stated in Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452 “it is a fundamental rule of construction that any document should be construed as far as possible so as to give the same meaning to the same words wherever those words occur in that document, and that that applies especially to an Act of Parliament”. Consistent with the principal set out in Craig Williamson and other cases the same meaning should be given to the phrase “general public interest” in both section 12(1) and section 60(3B).
… the use of the word “general” in the phrase “general public interest” should be given its ordinary meaning of “common to many or most of the community” and “non-specific or special” (Macquarie Dictionary). In that sense the phrase “general public interest” indicates that it is the inherent public interest in the disclosure of government information that is to be given consideration for the purposes of section 60(3B) as it is in section 12(1).
The Tribunal also confirmed (at [47]) that section 60(3B) does not refer to any other public interest considerations in favour of disclosure of the particular information sought by the access application, as set out in the statutory note to section 12(2).
In considering the demonstrable importance of the information to the applicant, as required by section 60(3B)(b), the Tribunal (at [59]) noted that the information is personal to Ms Lane but considered that the applicant had failed to establish the demonstrable importance of the information to her.
Tribunal outcome
The Tribunal affirmed the decision under review and determined that the correct preferable decision was to refuse to deal with the application pursuant to section 60(1)(a) of the GIPA Act.
