Case Note: Robertson v Deputy Secretary, Local Government, Planning and Policy [2023] NSWCATAP 88

Read the decision here: Robertson v Deputy Secretary, Local Government, Planning and Policy [2023] NSWCATAP 88

Summary

The Appellant lodged an access application with the Office of Local Government (the OLG) seeking access to documents connected with an investigation by the OLG into a Wagga Wagga Council City Councillor (the Councillor). The OLG decided, pursuant to s 51(1)(b) of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act), that the access application was not valid because the information sought was ‘excluded information’ within the meaning of s 43 of the GIPA Act. The Appellant then sought administrative review of the decision and the decision was affirmed by the Tribunal.[1]

This case note concerns the Appellant’s appeal against the Tribunal’s decision. On appeal, the Appellant argued that the Tribunal was incorrect in finding that the documents, which included investigation reports and documents recording decision making processes, were ‘related to’ the OLG’s complaints handling and investigation functions and were therefore excluded information.

The Appeal Panel outlined the approach to be followed, noting that it was important to first determine the functions granted to the agency before determining whether the information sought ‘relates to’ a prescribed statutory complaints handling process. The appeal was dismissed with the Appeal Panel confirming a number of prior decisions to the effect that;

‘…complaint handling and investigative functions of the OLG encompass “matters from the receipt of a complaint up to and including its resolution’

What you need to know

The conclusive presumption against disclosure of information that relates to an agency’s complaint handling and investigation functions is limited by the scope of the prescribed functions. In each instance, the agency must first determine the functions granted to it prior to determining whether the information sought relates to a prescribed statutory complaint handling or investigative function. It may also be relevant to look at the procedures prescribed by statute concerning the exercise of those powers and functions in assessing whether the relevant information relates to those functions.

Legislative background

GIPA Act

Section 43 Access application cannot be made for excluded information

Section 51(1)(b) Initial decision as to validity of application

Schedule 4, Clause 1 definition of ‘excluded information’

Schedule 4, Clause 1 definition of ‘function’

Factual background

The Appellant lodged an access application with the OLG seeking access to documents connected with an investigation by the Respondent into the Councillor. Specifically, the Appellant sought; 

(i)   A copy of any departmental report prepared under section 440H of the Local Government Act 1993 (NSW) referring to the Councillor;

(ii)   A copy of any briefing notes, recommendations or instructions relied upon when determining whether to make any direction to the Councillor.

(iii)   A copy of any other documents relied on indicating any prior offending or post event conduct and previous incidents of misconduct on the part of the Councillor.

The OLG decided, pursuant to s 51(1)(b) of the GIPA Act, that the access application was not valid because the information sought was ‘excluded information’ within the meaning of s 43 of the GIPA Act. 

Hearing

The Appellant submitted at the hearing that if members of the public were not able to access the material relied on by a decision maker in respect of a disciplinary action against a Councillor, the integrity of the decision-making process itself was effectively closed to public scrutiny.

The Appellant further submitted that “While the complaint handling and investigation process is excluded from scrutiny, resulting reports and decision-making processes are not, unless they relate to the investigation process. They do not so relate.”

The Tribunal had particular regard to s 440H of the Local Government Act 1993 (the LGA) as follows;

440H DEPARTMENTAL CHIEF EXECUTIVE MAY INVESTIGATE OR SEEK REPORT ON MISCONDUCT OF COUNCILLOR

(1) The Departmental Chief Executive may conduct an investigation for the purpose of determining whether a councillor has engaged in misconduct.

…

(5) The Departmental Chief Executive may arrange for a departmental report to be prepared in relation to an investigation conducted under this section.

Appeal Panel findings

The Appeal Panel was ultimately concerned with the question as to whether the documents sought by the appellant related to the complaint handling and investigation processes of the OLG.

The Appeal Panel noted the importance of first determining the functions granted to the agency before determining whether the information sought “relates to” a prescribed statutory complaints handling process. It affirmed that the correct test is what is the purpose or character of the information at the time the information was first created or obtained by the respondent.

It concluded that the Tribunal at first instance correctly found that:

“the preparation of a departmental report is a precursor to disciplinary action pursuant to either ss 440H(5) or 440H(5A) of the LGA, it would clearly ‘relate to’ the investigative functions of the Respondent, because such a report would be prepared ‘in relation to an investigation’ under s 440H of the LGA. …”.  This is because the information relates to a concluded function of the respondent in Sch 2 of the GIPA Act which is still excluded information.”

In conclusion, the Appeal Panel stated that;

“The concluded report and any of the other categories of information sought in the application are in our view at the heart of the complaint handling and investigation process, not at the periphery. Such a report and the material considered will contain the results of the investigation. Where the investigation is concluded, this does not prevent a final report from relating to that process.’

Appeal Panel outcome

The Appeal Panel dismissed the appeal, confirming that the access application was invalid because it sought ‘excluded information’ and a number of prior decisions to the effect that;

‘…complaint handling and investigative functions of the OLG encompass “matters from the receipt of a complaint up to and including its resolution’