Miriani v Transport for NSW [2021] NSWCATAD 16

Read the decision here: Miriani v Transport for NSW [2021] NSWCATAD 16

Summary

Transport for NSW (the respondent) applied to the Tribunal under section 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) to summarily dismiss a review application made under the Government Information (Public Access) Act (NSW) (GIPA Act) by Mr Joe Miriani (the applicant). The respondent submitted that the applicant’s real concerns were with NSW Police, and unrelated to the proceedings, and therefore the review application served a collateral ulterior purpose, rendering the application vexatious. The Tribunal rejected this submission

The Tribunal also rejected the respondent’s submission that the onus was on the applicant to satisfy the Tribunal that there were reasonable grounds for believing that further information falling within the scope of the application existed. The Tribunal observed that the authorities relied on by the respondent in support of that submission were no longer “good law”. The Tribunal followed the Appeal Panel’s analysis of who holds the burden of proof with respect to decisions that information is not held under the GIPA Act in Wojciechowska v Commissioner of Police [2020] NSWCATAP 257 (Wojciechowska) ([36]-[44]).

What you need to know

In conducting reviews, the Tribunal is generally not concerned with the motivations of applicants seeking access to government information [25]. The Tribunal stated that the GIPA Act establishes a presumption in favour of disclosure of government information and does not require that access applicants disclose their motivations for seeking access, or the use of that information once obtained. The Tribunal noted that it is not unusual for access applications to be made in the hope of using that information to support litigation, or to seek information to demonstrate maladministration, incompetence or corruption.

In reviewing the respondent’s decision that the information was not held, the Tribunal applied the process set out in Wojciechowska and rejected the submission that the onus was on the applicant to satisfy the Tribunal that there were reasonable grounds for believing that further information within the scope of the application existed. The Tribunal found that the respondent was required to demonstrate the correctness of its decision under section 105 of the GIPA Act [39].

Legislative background

GIPA Act

• Section 12 public interest considerations in favour of disclosure
• Section 13 public interest test
• Section 53 requirement to conduct reasonable searches
• Section 58(1)(b) information not held by agency
• Section 105 onus on agency to justify decision

Review requirements and jurisdiction

• Section 50 of the Civil and Administrative Tribunal Act 2013 (NSW) when hearings are required
• Section 55 of the Civil and Administrative Tribunal Act 2013 (NSW) dismissal of proceedings

Factual background

On 1 March 2020, the applicant lodged an access application with the respondent seeking access to information, including: 1. “information relating to or referring to the inclusion of the name that the applicant was given at birth as identifying personal information used by the Department in the exercise of its statutory functions, which is making the electronic verification of his driver’s licence currently impossible, including the following: (a) documents, electronic and handwritten records relating to how the set outdated personal information came to be used again by the Department.”

On 1 April 2020, the respondent made a decision to release, in full, the DRIVES Customer Name History in response to item 1. The applicant was dissatisfied with the result and filed an external review application in the Tribunal on 1 June 2020, stating that the information provided was not relevant to his request, and noting that the agency was required to undertake reasonable searches.

Following mediation on 6 August 2020, the respondent conducted a further/more specific search for “any correspondence from NSW Police to TfNSW relating to the inclusion of the name that the applicant was given at birth, including but not limited to, available documents including emails, letters, faxes and written records from 1 January 2018 to 1 June 2020. Should there be documents available from NSW Police to TfNSW any return correspondence on the topic to be also disclosed.”

On 21 August 2020, the respondent advised the applicant that the further/more specific search had returned no results. On 25 August 2020, the respondent notified the Tribunal of its application under section 55(1)(b) of the CAT Act to have the applicant’s review application summarily dismissed. The Tribunal made procedural directions regarding submissions. The applicant did not comply with the directions and ultimately the Tribunal determined the respondent’s application for summary dismissal together with a review of the respondent’s decision that information was not held.

Tribunal findings

The Tribunal considered the respondent’s submissions that the applicant’s real concerns were with NSW Police, that those concerns were unrelated to the proceedings, and that the review application served a collateral ulterior purpose, rendering the review application vexatious [24]. The Tribunal held that when conducting reviews under the GIPA Act, the Tribunal is generally not concerned with the motivations of applicants seeking access to government information and went on to refer to the objects of the GIPA Act set out in section 3(1). The Tribunal stated  that the GIPA Act establishes a presumption in favour of disclosure of government information and does not require that access applicants disclose their motivations for seeking access to government information, or the uses to which they wish to put that information once obtained [25]. The Tribunal also noted that it is not unusual for applications to be made for access to government information in the hope of using that information to support litigation against others, or to seek information to demonstrate maladministration, incompetence or corruption [28]. The Tribunal found that members of the public seeking access to government information are exercising the right to do so given to them by the GIPA Act. They are not required by the GIPA Act to explain their motivations. The Tribunal therefore rejected the respondent’s submission that the review application was vexatious because the applicant had made it for a collateral or ulterior purpose.

The respondent’s reasons for submitting that the review application should be summarily dismissed were that it had conducted reasonable searches and the applicant had not provided any evidence in support of his claim that the searches conducted were not reasonable. The Tribunal held that section 55(1)(b) of the CAT Act does not apply to these reasons [36]. The Tribunal considered the respondent’s submission that the onus was on the applicant to satisfy the Tribunal that there were reasonable grounds for believing that further information falling within the scope of the application existed. The Tribunal found that the authorities relied on by the respondent in support of that submission were no longer “good law” and followed the Appeal Panel’s process and analysis of the burden of proof with respect to decisions that information is not held in Wojciechowska (at [36]-[44]). The process requires the Tribunal to:

1. 1. identify on the basis of the agency’s reasons and the applicant’s submissions, any relevant factual issues including those derived from section 53(1) – (5);
   2. determine whether the agency has proved any relevant factual issues on the balance of probabilities;
   3. consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency;
   4. applying those findings, decide what the correct or preferable decision is;
   5. affirm, set aside or vary the agency’s decision: s 63(3) of the ADR Act.

Tribunal outcome

The Tribunal dispensed with the hearing in accordance with section 50(2) of the CAT Act. The Tribunal further dismissed the respondent’s application under section 55(1)(b) of the CAT Act for summary dismissal of the applicant’s review application. The Tribunal also determined that the applicant’s review application was to be listed for further case conference.