Information access Case Note: Mino v Legal Aid NSW [2015] NSWCATAD 245

View full decisions here The Tribunal does not have jurisdiction to require an agency to create a new record or to review an agency’s decision not to include information on its disclosure log Mino v Legal Aid NSW [2015] NSWCATAD 24

What you need to know

The Tribunal considered the issue of adequacy of searches, creating of new records, disclosure log requirements and reviewable decisions.

The Tribunal determined that where an agency has established it does not hold the information falling within the scope of an access application the agency is not prevented from creating a new record under section 75(2)(c) of the GIPA Act, but the Tribunal does not have the jurisdiction to require an agency to create a new record. IPC Factsheet – creating new records under the GIPA Act.

The Tribunal determined that although it could review a decision to include information in a disclosure log despite an objection in terms of section 80(m) of the GIPA Act, a decision not to include in a disclosure log is not a reviewable decision. The Tribunal does not have the jurisdiction either under its general review power or the review power conferred by the GIPA Act to review a decision of the agency not to place access information on the disclosure log.

Legislative background

The Tribunal noted that Legal Aid made the following original decisions in relation to the access application by Mr Mino for three items of information:

• They did not hold the information falling within the scope of item 1 in terms of section 58(1)(b) and they were not obliged to create a new record in terms of section 75.
• They provided all information falling within the scope of items 2 and 3 in terms of sections 58(1)(c) and 59(2).

The Tribunal also considered its jurisdiction in relation to Mr Mino’s request to include matters in Legal Aid’s disclosure log.

Factual background

Mr Mino sought access to information held by Legal Aid that can be described as follows:

• Item 1 – A copy of the notice in writing that a practitioner must serve on the Court about a grant of legal aid received within 30 days of Trial
• Item 2 – The Legal Aid Committee decision on the application for a grant of legal aid dated 28 November 2012
• Item 3 –The earliest files held by Legal Aid in relation to identified Local Court listings

Legal Aid undertook searches for the information and then made a decision as follows:  

• Item 1 - information not held in terms of section 58(1)(b) of the GIPA Act
• Items 2 and 3 – information already available and previously provided in terms of section 58(1)(c) of the GIPA Act.

Legal Aid also decided not to disclose Mr Mino’s access information on their disclosure log.

Mr Mino sought a review by the Tribunal, including Legal Aid’s decision not to disclose Mr Mino’s access information on the disclosure log.

The decision was divided into the three main issues.

1. Information is not held by the agency

The Tribunal outlined what they are required to consider in relation to the statement that the information is not held by an agency. The Tribunal must form a view as to whether there may be records relevant to the application and if so whether the effort the agency has made to find them was sufficient.

This can be done by considering two questions - firstly whether there are reasonable grounds for believing there may be additional documents, and secondly whether the agency’s searches were reasonable in all the circumstances

The Tribunal noted in this case although the Applicant raised concerns about the adequacy of searches, he did not suggest other searches that may have revealed the information. The Tribunal found on the basis of the information given that no record related to item 1 was ever created, and also on the basis of the agency’s evidence that the searches undertaken were reasonable, sufficient and adequate.

The Tribunal also looked at the requirement in section 75 of the GIPA Act to create a new record. The Tribunal noted that the agency is not prevented from creating a new record in terms of section 75(2)(c), however the Tribunal does not have the jurisdiction to require the agency to create the new record.

2. Has the Respondent provided all the information that it holds falling within the scope of items 2 and 3 of the access application?

The Tribunal noted the provisions of sections 58 and 59 of the GIPA Act and considered the agency’s evidence. The Tribunal noted that the evidence was not challenged by the Applicant. The Tribunal found that the information had already been provided and therefore the agency was not required to provide another copy (section 59(2)).

3. Tribunal’s jurisdiction in relation to the inclusion of a matter on a disclosure log.

The Tribunal considered the obligations of sections 25 and 26 the GIPA Act in relation to disclosure logs, and its jurisdiction to review a decision to include information in a disclosure log – section 80(m).

The Tribunal noted the GIPA Act is silent on whether the Tribunal has jurisdiction to review an agency's decision not to include information in its disclosure log.

The Tribunal agreed with the agency’s submissions that a decision not to include information on a disclosure log is not a reviewable decision.

The Tribunal in coming to this conclusion examined its general jurisdiction as provided by sections 28 and 30 of the Civil and Administrative Tribunal Act 2013 and section 9 of the Administrative Decisions Revise Act 1997. The Tribunal in concluding there is no jurisdiction noted:

50    There does not appear to be any provision that permits an application to be made to the Tribunal for review of an agency's decision not to include information in its disclosure log. It follows, in my view, that the Tribunal does not have jurisdiction to review that aspect of the Respondent's decision.