Case Note: O’Brien v Secretary, Department Communities and Justice [2022] NSWCATAD 100

Read the decision here: O’Brien v Secretary, Department Communities and Justice [2022] NSWCATAD 100

Summary

Ms O’Brien (the Applicant) lodged an application under the GIPA Act with the Department of Communities and Justice (the Respondent) seeking information about the calculation of base rent and rental subsidies and the impact of factors including geographical location on rent payable by  social housing tenants.

The Respondent determined that it did not hold the algorithm, software specification, source code or test suites sought at points 9 and 11-13 of the application. Instead, the Respondent decided that the information at points 9, 11 and 12 was held by Northgate Public Services (NPS). NPS was engaged by the Respondent to develop software to manage Private Rental Subsidies with the Respondent’s HOMES database.

The Applicant subsequently applied for external review by the Information Commissioner. The Information Commissioner found that the Respondent’s decision was not justified and recommended that the agency make a new decision. The Information Commissioner noted that the information had been identified by the Respondent, was used by the Respondent, and therefore appeared to be held by the Respondent.

The Respondent did not make a new decision, and the Applicant applied for administrative review by NCAT.

The Tribunal affirmed the Respondent’s decision that information responsive to points 9 and 11-13 of the access application was not held. In making that decision, the Tribunal held that there was no right of access included in the terms of the contract between the Respondent and NPS. The Tribunal held that even if it was satisfied that there was an immediate right of access, it was doubtful that section 121 would provide access to the information because it does not impose a requirement on the contractor to provide information to the agency that would place the contractor at a commercial disadvantage to the agency, now or into the future.

What you need to know

Information access is an enabling right. In this case the social housing tenant wanted to gain information about the calculation of her rental subsidy. In a non-digital environment this information would be readily available. As government increasingly adopts digital technology, it has a duty to implement administrative practices that safeguard the legislated commitment to open government and the fundamental right of access to information. This includes responding to formal and informal access applications in a comprehensive manner that takes into consideration information used to develop and support digital solutions including algorithms, source code, test suites, data sets and variables.

This matter highlights the importance of preserving access rights where an agency enters into a contract with a private sector entity and the potential for curtailment of a citizen’s right to access government information.

Legislative background

GIPA Act

Section 58 how applications are decided

Section 121 provision of information by private sector contractors

Factual background

The Applicant is a New South Wales Social Housing tenant. On 19 March 2019, the Applicant lodged an access application under the GIPA Act with the Respondent seeking information in relation to how the Respondent calculated base rent and rental subsidies.

On 29 April 2019, the Respondent decided to provide access to certain information and refuse access to certain information on the basis of an overriding public interest against disclosure. The Respondent also determined that it did not hold information responsive to points 9 and 11-13 of the application below:

9. The algorithm for the subsidy calculation pertaining to Private Rental Subsidy 

…

11. The software specification given for the implementation of the subsidy calculation pertaining to Private Rental Subsidy

12. The source code in use for the implementation for the subsidy calculation pertaining to Private Rental Subsidy

13. The test suites employed for the implementation for the subsidy calculation

...

The Respondent decided that the information at points 9, 11 and 12 was held by NPS. The Respondent further decided that information responsive to point 13 was not held.

On external review the Information Commissioner recommended that the Respondent make a new decision. The Respondent did not make a new decision.

In conducting its administrative review the Tribunal initially remitted the decision back to the Respondent for reconsideration with respect to points 9 and 11-13 of the access application. On 27 September 2019, the Respondent again determined that it did not hold information responsive to points 9 and 11-13 of the application. Section 121 of the GIPA Act was identified as being central to the issue as to whether the information was held by the Respondent or NPS.

At hearing on 30 March 2021, the Tribunal considered two important aspects of the operation of section 121 of the GIPA Act.

1. Was section 121(1) confined to services as distinct from government decision making?
2. Did section 121(2)(a) operate to prevent access to information that, if disclosed would place NPS at a commercial disadvantage to the Respondent?

The Information Commissioner’s submissions addressed the first of these issues as follows:

• The purpose of section 121 is to ensure that agencies have an immediate right of access to prescribed information held by contracted service providers. This provision preserves the right to access government information. Agencies should ensure that government contracts are accessible whether the contractor is providing a service to the public or undertaking an activity that assists the agency to provide a service to the public.
• If the NPS algorithm provided an input to the decision-making associated with the rental calculation it was intrinsic to the government service.

Tribunal’s findings

Was the information sought by points 9 and 11-13 of the access application held by the Respondent?

The Tribunal determined that, there was no right of access included under the Contract, to reflect section 121 of the GIPA Act. The Tribunal noted that this may be because the Contract predated the GIPA Act and the obligations that Act places on government contracts.

Consequently, the Tribunal was not satisfied that the Respondent had an immediate right of access to the information. In addition, the Tribunal held that even if it was satisfied that there was an immediate right of access, it was doubtful that section 121 enabled access to the information because a government contract is not required to provide the agency with an immediate right of access to information that, if disclosed, could reasonably be expected to place the contractor at a substantial commercial disadvantage in relation to the agency, whether at present or in the future.

The Contract predated the commencement of the GIPA Act by approximately three years and therefore the Tribunal was also doubtful that section 121 applied retrospectively.

Tribunal outcome

The Tribunal affirmed the Respondent’s decision that information responsive to points 9 and 11-13 of the access application was not held.