Information Access Case Note: Zonnevylle v Department of Education and Communities [2016] NSWCATAD 49 and Zonnevylle v NSW Department of Finance and Services [2016] NSWCATAD 47

View full decisions here The Tribunal dealt with the application of section 112 of the GIPA Act, which enables the Tribunal to refer to the relevant Minister any circumstances where an officer of an agency may be thought to have acted inappropriately with respect to his or her functions under the GIPA Act. Zonnevylle v Department of Education and Communities [2016] NSWCATAD 49 and Zonnevylle v NSW Department of Finance and Services [2016] NSWCATAD 47.

What you need to know

The Tribunal confirmed that the object of section 112 of the GIPA Act is to enable the relevant Minister to be informed of any circumstances where an officer of an agency may be thought to have acted inappropriately with respect to his or her functions under the GIPA Act. A referral would permit that Minister to take appropriate administrative or disciplinary steps and thereby achieving the objects of the GIPA Act and ensuring greater compliance with the GIPA Act in the future. 

Any referral under section 112 must be made in relation to an "officer of an agency", not against the agency generally; and the conduct complained about must be a failure "to exercise in good faith a function conferred on the officer by or under the GIPA Act”.

In these decisions the Tribunal confirmed that the exercise of good faith requires an honest and conscientious approach, which means that to show the officer lacked good faith the officer’s conduct needs to show more than honest ineptitude. The test of good faith is predominantly a subjective one; however, there are some objective components as well. These objective components include the attempt made to answer the request for information by recourse to the available materials and the nature of the consideration given to the application.

The decisions also confirm:

• The mere fact that the Tribunal accepts that an aspect of the agency's decision is wrong is insufficient to bring the matter within the scope of section 112.
• The applicant bringing an action under section 112 bears the burden of establishing the facts upon which he or she seeks to rely for the purpose of section 112.
• Section 112 can only be invoked following a Tribunal administrative review, not as a separate application requiring a satellite hearing. 
• A breach of section 112 can only be made in relation to an officer of an agency and not against the agency generally and the officer must also have decision-making functions conferred on them under section 9(3) of the GIPA Act.

The Tribunal in both cases found the applicant had failed to demonstrate that the respondent was not honest and conscientious in their approach to the functions conferred under the GIPA Act, and thus did not consider that any action under section 112 of the GIPA Act was warranted.

Legislative background

Section 112 of the GIPA Act provides that the Tribunal may bring a matter to the attention of the Minister responsible for the respondent agency if, following an administrative review; it is found that an officer of an agency has failed to exercise in good faith a function conferred on them. The Appeal Panel in an earlier matter of Warren v Trustee and Guardian (NSW) [2014] NSWCATAP 20 confirmed that embarking on the kind of enquiry that section 112 contemplates is a very grave step reserved for very rare cases.

Factual background

The applicant in Zonnevylle v NSW Department of Finance & Services made a number of access requests to the respondent. The respondent released some of the requested information in full or in part. The applicant, however, expressed concern and raised numerous issues in relation to the respondent’s conduct in processing the access applications. The applicant alleged a number of officers had failed to act in good faith and as a result had requested the Tribunal take action pursuant to section 112 of the GIPA Act.

Similarly, the applicant in Zonneyvylle v Department of Education and Communities made six applications to the respondent. The respondent was not able to identify two of the applications, found the information in relation to one of the applications was already available online, and found the rest of the applications to be extensive in length. Subsequently, the respondent required a processing fee. The fee, however, was not paid and so the documents were withheld by the respondent. The issues raised included whether the access applications represented a substantial and unreasonable diversion of resources and whether the respondent’s conduct in processing the various applications warranted referral under section 112 of the GIPA Act.