Zonnevylle v Department of Customer Service; Zonnevylle v Secretary, Department of Education [2021] NSWCATAD 35

Read the decision here: Zonnevylle v Department of Customer Service; Zonnevylle v Secretary, Department of Education [2021] NSWCATAD 35

Summary

The Tribunal reviewed the decisions of the Department of Customer Service and the Department of Education (the Agencies) that the access applications received from Mr Zonnevylle (the applicant) were not valid because of restraint orders and s. 110(7) of the Government Information (Public Access) Act 2009 (GIPA Act).  The applicant had sent an access application to each Agency by email on 2 April 2020, at 6:29pm and 10:50pm respectively. On 3 April 2020, the Tribunal made orders restraining the applicant from making an access application, pursuant to s. 110. The question for the Tribunal was whether the access applications sent by the applicant were invalid because they were received at a time when the applicant was prohibited by the restraining orders and s. 110(7) from making an application. The Tribunal considered when the applications were made according to the words “actually received” in s. 41(3) and found that these words should be given their ordinary meaning and be construed as meaning actual receipt. The Tribunal rejected the Agencies’ contention that receipt required the Agencies to be able to act upon the application on 3 April 2020. The Tribunal determined that the access applications were made and actually received by the Agencies on 2 April 2020, not on 3 April 2020. The Tribunal was not required to determine the question of when the restraint order against the applicant would take effect.  The Tribunal also considered the Agencies’ alternative argument that the access applications were invalid as they did not include information as is reasonably necessary to enable the government information applied for to be identified. The Tribunal set aside the Agencies’ decisions that the access applications were not valid.

What you need to know

The decision interprets the meaning of when an access application made under the GIPA Act is “actually received” by the agency pursuant to s. 41(3). The Tribunal interpreted this text according to the ordinary meaning of these words, being the fact of receipt of the application by post or email. The actual receipt is not determined by when an agency is able to act upon the application.

This clarification of s. 41(3) is important to agencies as it determines when access rights are enlivened under the GIPA Act, and timing requirements for obligations on agencies. This includes, the processes for dealing with and determining applications, notification timeframes, the exercise of review rights and time limits on review.

While the reviewable decision was not based on a claim that there was insufficient information to enable identification of the information, the Tribunal also provided guidance on the evidence required to support a decision that an access application is not valid by operation of s. 41(1)(e).

Legislative background

GIPA Act

• Section 80(a) review of decision that an application is not a valid access application
• Section 41 how to make a valid access application
• Section 51 initial decision as to validity of application
• Section 52 agency assistance with invalid applications

Administrative review jurisdiction

• Section 100 Administrative review of decision by NCAT
• Section 110   Orders to restrain making of unmeritorious access applications

Factual background

On 2 April 2020, the applicant sent access applications to the Agencies’ designated email addresses, by emails at 6:29pm and 10:50pm. On 3 April 2020, the Tribunal published its decision and restraint orders in Department of Education v Zonnevylle [2020] NSWCATAD 96 which prohibited the applicant from making an access application to an agency listed in paragraph 2 without first obtaining the approval of the Tribunal. The list of agencies included both the Agencies. On 8 and 9 April 2020, the Agencies each notified the applicant of their decisions that the applications were invalid as the applications were not made with the prior approval of the Tribunal.

The applicant applied to the Information Commissioner for review of these decisions, and on 14 July 2020, the Information Commissioner notified the applicant that she was satisfied that the decisions made by the Agencies were justified because the applications were not “actually received” by each Agency for the purposes of s. 41(3) of the GIPA Act until the agency was able to determine validity. On 11 August 2020, the applicant filed applications for review of the decisions. The Information Commissioner exercised her right to appear and be heard pursuant to s. 104(1) of the GIPA Act.

Tribunal findings

The Tribunal confirmed that the concept of receipt with respect to access applications made under the GIPA Act is affected by s. 41(3) which requires that the application has been “actually received” [30].  The Tribunal set out the competing constructions of the phrase “actually received” as follows:

• the ordinary meaning of that phrase namely, to denote receipt which has actually occurred (ordinary meaning). This stands in contrast, for example, to receipt which is deemed or constructive; and
• actual receipt together with an ability to act upon an application (respondent agencies construction) [31].

The Tribunal’s interpretation of s. 41 confirmed that the starting point for determining the correct construction is the text of s. 41 of the GIPA Act [33-36]. The Tribunal considered the requirements for validity in s. 41(1)(a) are that the application is in writing and provides for at least three methods of delivery of an application (sent by post, lodged in person, and email if such a manner is approved by the agency).

The Tribunal explained that the ordinary meaning of the phrase “actually received” in s. 41 operates in the following ways:

• if the application is in fact received by an agency (i.e. an application sent by post arrives, an application is lodged in person or an email attaching the application is received by the agency’s designated email address), then the application has been “actually received” by the agency;
• if the application is not in fact received (i.e. an application is sent by post but is not received by the agency, or an email attaching an application is sent but is not received by the agency (e.g. because it has been mis-addressed)), then the application has not been “actually received” by the agency [35].

The Tribunal stated that the:

“… phrase ‘actually received’ operates so as to avoid the situation in which an application has been sent but has not been received being treated as a valid application. The purpose of its inclusion is obvious - in a situation where an application is sent by post or email but is not received, there can be no utility in having time run on the processing the application.” [36]

The Tribunal went on to say that “There is nothing in the text of s 41 which suggests that the words “actually received” should be construed as meaning actual receipt, together with an ability to act upon an application.”

In concluding that the applications were received by the Agencies on 2 April 2020, the Tribunal stated that it was not necessary to resolve the issue of when the s. 110 restraint orders against the applicant were in force. However, the Tribunal did observe that orders made pursuant to s. 110 should not be in force prior to the time they were published to the parties.

The Tribunal noted that the claim of invalidity for non-compliance with s. 41(1)(e) did not form part of the reviewable decisions made by the Agencies. However, in summary, the Tribunal opined that the Respondent Agencies had not adduced evidence to support a claim that the application did not contain information to enable identification of the information sought [66].

The Tribunal was also required to  consider the operation of s.52(2) in deeming an application to have been made when the fee is paid, or when information is provided sufficient to enable the agency to identify the information sought. The Tribunal found that the applicant’s provision of information during the proceedings did not enliven s.52(2).  

The Tribunal observed that s. 52(2) operates only if the applicant provides ‘the required information’ which they have been invited by the agency to provide in circumstances where there is a notification from the agency pursuant to s. 52(1)(a),(c),(2) of the GIPA Act [96].

Tribunal outcome

The Tribunal ordered that the decisions under review are set aside; and the application for orders filed by the applicant on 19 December 2020 is dismissed.