Christopher v Independent Commission Against Corruption [2021] NSWCATAD 256

Read the decision here: Christopher v Independent Commission Against Corruption [2021] NSWCATAD 256

Summary

The Tribunal reviewed the decision by the Independent Commission Against Corruption (Respondent) that the access application made by Mr Christopher (Applicant) under the Government Information (Public Access) Act 2009 (GIPA Act) was not valid by operation of s. 43(2) because it was an application for “excluded information” under cl. 2 of Sch. 2 to the GIPA Act.  The Applicant sought 15 categories of written communications made and received by the Respondent between January and June 2015, including external communications in relation to the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW) (Validation Act) and the Independent Commission Against Corruption Amendment Bill 2015 (NSW) (Amendment Bill). The Respondent determined that all 15 categories of information related to its investigative and corruption prevention functions under cl. 2 of Sch. 2, making the entire access application invalid. On administrative review, the Respondent also argued in the alternative that, having searched for information within the terms of the access application, there is a conclusive presumption of an overriding public interest against disclosure of the information under cll. 1, 2, 5 and 6 of Sch. 1. The Tribunal affirmed the Respondent’s decision that the application was not valid by operation of s. 43(2), but only for 5 of the 15 categories of information. The Tribunal determined that 8 items of information were “excluded information” because there was a conclusive presumption against disclosure in cl. 6 of Sch. 1. The Tribunal was satisfied that one item of information was not held and remitted the decision for reconsideration of one category of information under s. 63(3)(d) of the Administrative Decisions Review Act 1997 (ADR Act).

What you need to know

The decision confirms that agencies listed in Sch. 2 are not exempt from the operation of the GIPA Act; and clarifies the distinction between excluded information under cl. 2 of Sch. 2 subject to s. 43, and excluded information under cl. 6 of Sch. 1. The Tribunal confirmed that an access application seeking:

• “excluded information” (Sch. 2) is not valid by operation of s. 43(2) only to the extent that the information sought is prescribed as “excluded information” and the term/s describing the information sought are key factors in determining whether the application seeks “excluded information”
• excluded information under cl. 6 of Sch. 1 must be determined in accordance with
  s.  58(1)(d) of the GIPA Act if the agency to which the excluded information relates consents to its disclosure
• any other government information must be determined in accordance with s.  58 of the GIPA Act.  

Legislative background

• Section 80(a) review of decision that an application is not a valid access application
• Section 43 access application cannot be made for excluded information
• Section 51 initial decision as to validity of application
• Sch. 2 Excluded information of particular agencies
• Sch. 1 Information for which there is a conclusive presumption of an overriding public interest against disclosure
• Section 100 Administrative review of decision by NCAT

Factual background

On 23 October 2020, the Applicant made the access application on behalf of the Directors of Cascade Coal Pty Ltd, against whom the Respondent had made corruption findings in 2013. The decision at [17] set out the 15 categories of information sought by the access application which included information about the legislative reform proposals that occurred as result of the High Court’s decisions and the Respondent’s communications (internal and external) and public submissions on the Validation Act and Amendment Bill.  The access application also sought information about the Respondent’s communications to the 2020 ICAC Parliamentary Committee and inquiry into the reputational impact of the Respondent’s investigations. The decision at [18]-[34] set out the background to the subsequent Supreme Court and NSW Court of Appeal proceedings in which the Directors sought judicial review, as well as the High Court decisions in Independent Commission Against Corruption v Margaret Cunneen & Ors [2015] HCA 14; (2015) 256 CLR 1 (Cunneen decision) concerning the extent of the Respondents’ investigation powers.  

Tribunal findings

The Tribunal was not satisfied that the access application, in its entirety, was an invalid application under s. 43(2) of the GIPA Act. However, the Tribunal was satisfied that the terms used to describe the five categories of information sought information that did ‘relate to’ the ‘corruption prevention, complaint handling, investigative and reporting functions’ of the Respondent. To that extent, the application for access was an invalid application under s. 43(2): at [12]-[13].

The Tribunal confirmed that the expression, ‘excluded information of an agency specified in Schedule 2’ is defined in cl. 1 of Sch. 4 to mean ‘information that relates to any function specified in the Schedule in relation to the agency’: at [41]. The Tribunal confirmed that information relating to the Respondent’s “corruption prevention, complaint handling, investigative and reporting functions” is information prescribed as “excluded information” under cl.2 of Sch. 2: at [42].

The Tribunal considered the submissions by the Information Commissioner on the relevance of the terms of the access application in decision-making on validity:

I understand, the Information Commissioner to contend that while an agency to which Sch 2 of the GIPA Act applies may discern from the terms of the access application that the information sought is ‘excluded information’ this does not extinguish the agency’s obligation to examine and consider the information sought. This in turn will require the agency to search for the information for which access is sought in accordance with its obligations under s 53 of the GIPA Act: at [79].  

The Tribunal went on to consider the relevance of the terms of the access request to determining whether it sought prescribed “excluded information” at [80], [84] and [114]. The Tribunal (at [80]) stated that the application of s. 43(1) means an access application cannot be made to an agency for “excluded information” under Sch. 2, but this must be distinguished from the application of s. 14(1) with regard to information that is “excluded information” under cl. 6 of Sch. 1. The Tribunal stated:

The application of the former [s. 43] has the effect of determining, based on the terms of the person’s access application, that the application is an invalid application. The application of the latter has the effect of determining that there is a presumed conclusive overriding public interest against the disclosure of the information ‘held’ by the agency which has been identified by the agency to fall within the terms of the person’s access application: [80].

Importantly, the Tribunal emphasised that the government agencies listed in Sch. 2 are not exempt from the operation of the GIPA Act, noting that the GIPA Act does not contain exemptions, such as in the former Freedom of Information Act 1989 (NSW): at [83]. However, where a person makes an application for access to an agency listed in cl .2 of Sch 2, and the access application specifically seeks information that ‘relates to’ the specified functions in Sch. 2, this is an application for ‘excluded information’ and is invalid by reason of s 43(2) of the GIPA Act: at [83].

The Tribunal also formed an opinion on whether the search obligations under the GIPA Act applied to an agency’s reliance on s. 43:

In my opinion, where an agency relies on a 43(2), there is no obligation on the agency to first conduct a search for the information it holds that is responsive to the access application of the applicant. However, the agency does need to be satisfied that the terms of the access application is in fact an application for ‘excluded information’ in that the information sought ‘relates to’ the specified functions of the agency in Sch 2 of the GIPA Act. On administrative review, the onus is on the agency to prove that this is the case: at [84].

For information sought by an access application to which the s. 43 invalidity provision does not apply, the Tribunal stated:

Where an access application made to an agency listed in cl 2 of Sch 2 is not found to be invalid under s 43(2), as noted by the Information Commissioner, the agency is required to deal with that application in accordance with the provisions in Division 3 and 4 of Part 4 of the GIPA Act. This includes the obligation under s 53(2) to conduct reasonable searches for the information sought and to make a determination in regard thereto under s 58. The determinations that can be made are set out in s 58 of the GIPA Act and includes a decision to refuse to provide access to the information sought because there is an overriding public interest against disclosure of the information sought: GIPA Act s 58(1)(d):
 at [89].

The Tribunal then distinguished between “excluded information” captured by cl. 6 of Sch. 1 and subject to s. 43, and “excluded information” under cl. 2 of Sch. 2:

Included in [Sch. 1] is ‘excluded information’, which has the same meaning as that contained in s 43(2): see GIPA Act, Sch 1 cl 6. However, that clause (i.e. cl 6 in Sch 1) has a wider application to that of s 43(2) in that it also applies to ‘excluded information’ of an agency listed in cl 2 of Sch 2 that is held by another agency: see for example Coppock v Willoughby City Council [2021] NSWCATAD 166 and Hooper v Willoughby City Council [2021] NSWCATAD 208.  

Clause 6 in Sch 1 of the GIPA Act also contains a proviso in that it does not apply where the agency has consented to the disclosure of the information in issue. The expression ‘disclose information’, is defined in cl 1 of Schedule 4 of the GIPA Act to include ‘make information available and release or provide access to information’: at [90]-[91].

At [96], the Tribunal drew attention to the s. 3 object of the GIPA Act to “open government information to the public in order to maintain and advance a system of responsible and representative democratic Government”, but affirmed the Appeal Panel’s comments in DNM v NSW Ombudsman [2019] NSWCATAP 7 at [36] that the same object  is equally achieved by restricting access when there is an overriding public interest against disclosure of government information, and s. 43(2) is consistent with this restriction.

The Tribunal interpreted the expression ‘relates to’ as being accepted to be of broad import” (at [92]), and the expression, ‘complaint handling, investigative and reporting functions’ in cl. 2 of Sch 2 of the GIPA Act “are expressed in general terms and not by reference to any specific legislative provision”: at [97], noting DNM at [46]-[47]. The Tribunal did not agree with the Applicant’s submission that the Respondent’s investigatory functions under ss. 18-19 of the Independent Commission Against Corruption Act 1988 end when findings are made: at [97]-[100].  The Tribunal determined that the categories of documents relating to the Cunneen Decision, or the effect of the Validation Act or Amendment Bill, is information that ‘relates to’ the Respondent’s ‘corruption prevention and investigative’ function and is thereby ‘excluded information’ under cl 2 of Sch 2 of the GIPA Act: at [102].

However, the Tribunal was not satisfied that communications “relating to or making reference to” the Validation Act and the Amendment Bill is information that ‘relates to’ the cl. 2 functions under Sch 2: at [106]. The Tribunal stated that “the preparation of legislative instruments was not a function of the Respondent, even where the legislation concerns the scope of its legislative powers and functions” and the application for such information was valid: at [107]-[108].  The Tribunal found that these communications were “excluded information” under cl. 6 Sch. 1: at [110] and [118].

Tribunal outcome

The Tribunal (at [128]) made orders affirming the decision in part in finding that 5 categories of information were “excluded information” subject to s. 43 invalidity; set aside this decision for 8 categories of information; and ordered the Respondent to reconsider the decision for one category of information.