Information Access Case Note: Jeray v Blue Mountains City Council [2021] NSWCATAP 310

Read the decision here: Jeray v Blue Mountains City Council [2021] NSWCATAP 310   

Summary

The Appeal Panel upheld the Appellant’s (Mr Jeray) appeal of the Tribunal’s decision in Jeray v Blue Mountains City Council [2021] NSWCATAD 67 (17 March 2021) that his access application made to the Respondent (Blue Mountains City Council) was not valid according to section 41(1)(e) of the Government Information (Public Access) Act 2009 (GIPA Act). Section 41(1)(e) requires that an application include such information as is reasonably necessary to enable the government information applied for to be identified. Mr Jeray’s application sought “all records concerning the North Face 100/Ultra Trail event” and also asked to be provided with “an index of records held”. The Appeal Panel found at [19] that the Tribunal erred in the way it construed the validity requirement in section 41(1)(e).  The Tribunal found that the wording of section 41(1)(e) requires a focus on the meaning of the “identification requirement” for validity.    

What you need to know

The Appeal Panel used the phrase, “the identification requirement” to refer to the statutory test for interpreting section 41(1)(e), which asks whether the access application includes such information as is “reasonably necessary” to enable the government information to be “identified”.  While the purpose of the identification requirement in section 41(1)(e) is to enable the agency to perform its functions under the GIPA Act, that should not be confused with the meaning of the identification requirement for finding validity in section 41(1)(e).

In this context, the Tribunal held that the following factors are not relevant to determining validity:

• an agency’s view of the reasonableness of an access application on its ability to perform its functions
• whether a broad scope of information is sought by an access application
• the time required to identify the information.  

Legislative background

GIPA Act

Section 41 how to make a valid access application

Civil and Administrative Tribunal Act 2013

Section 80(2)(b) (leave to appeal on grounds on a question of law)

Factual background

Access application

Mr Jeray sought “all records concerning the North Face 100/Ultra Trail event. If there are many records please provide me with an index of records held so that I may select the documents required.”

Blue Mountains City Council notified Mr Jeray that the application was invalid and did not comply with section 41(1)(e), as it did not provide enough information, specify a time frame/date range, or specify the type of records/documents sought. The Council invited Mr Jeray to amend the application by a time frame and description of specific information. Mr Jeray replaced the words “an index” with “a list of records held”.  

Tribunal review

The decision at first instance affirmed the Council’s decision that the term “all records” does not contain a reasonable amount of information to enable the agency to perform its functions under the GIPA Act. The Tribunal also remitted the matter to the Respondent to consider whether to provide the Applicant with the list of information prepared by it in response to the request for an index of records, pursuant to section 75.

Appeal

Mr Jeray appealed the decision on a question of law about the proper construction of the statutory provision in section 41(1)(e), which was by right under section 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).

Appeal Panel findings

The Appeal Panel found an error of law in the Tribunal’s decision and at [13] noted that the Tribunal interpreted the section 41(1)(e) by reference to the Appeal Panel’s comments in Department of Communities and Justice v Zonnevylle [2020] NSWCATAP 126 at [43] (“Zonnevylle”) that many provisions in the GIPA Act, including section 41(1)(e), contain a test of reasonableness.

The Appeal Panel rejected the Tribunal’s emphasis on “reasonableness” as the test for interpreting the “identification requirement” for validity in section 41(1)(e):

… While the purpose of the identification requirement is to enable the agency to perform its functions under the GIPA Act, that should not be confused with the meaning of the identification requirement. Section 41(1)(e) merely requires that an applicant provide such information as is reasonably necessary to enable the government information applied for to be identified.

Contrary to the suggestion in the reasons Council gave for its decision, the identification requirement does mean that an applicant has to confine an application to a particular time frame or to particular types of records or documents. The fact that the requested information is vast or that the information is difficult to locate, does not make the application invalid  

The Appeal Panel also found that its views in Zonnevylle were not relevant to Mr Jeray’s application for review because that case required the Appeal Panel to consider an access application comprising severable parts, which found that:

… the identification requirement applies to all the government information applied for. That means that an application for government information is either wholly valid or wholly invalid. There were no severable parts of Mr Jeray’s application, so the Appeal Panel’s reasoning on that point in Zonnevylle is not relevant to this case: at [18]

The Appeal Panel in Jeray at [19]-[20] found that the Tribunal erred in the way it construed the identification requirement in section 41(1)(e) because:

• the Tribunal focused on the reasonableness of the application and the ability of Council to perform its functions, rather than focusing on the wording of the provision
• when the identification requirement is construed correctly, it is apparent that Mr Jeray’s application does include “such information as is reasonably necessary to enable the government information applied for to be identified”
• the Respondent’s evidence and submissions are not relevant to the question of validity because they relate to the broad scope of the application, the time it will take to identify the information, and the risk that some information will be missed.

Tribunal outcome

The Appeal Panel set aside the orders of the Tribunal of 17 March 2020 and pursuant to s 63(3)(d) of the Administrative Decisions Review Act 2013 (NSW), made the order to set aside the decision of the Blue Mountains City Council dated 29 July 2020 and remitted Mr Jeray’s amended application to the Council for reconsideration with the direction that the amended application is deemed to have been received by the Blue Mountains City Council on the date of these reasons.