NSW Information & Privacy Commissioner’s Information Access Case-Note Omits Tribunal Precedents Recording Exercise of Discretion for Section 110 Orders, 11.01.2022
The NSW Information & Privacy Commissioner (IPC) has issued a Case-Note information sheet concerning the protocols and caselaw regarding the Government Information (Public Access) Act 2009, GIPA.
The Case-Note makes lengthy commentary on the GIPA Act 2009 Section 110 (4).
Section 110 is a mechanism for NSW Government Agencies to effectively restrain members of the public from requesting access to information, most particularly relating to unmeritorious requests for information, making the public’s legally enforceable right (supposed) to access NSW government information extremely arduous and unnecessarily expensive.
Making the accessing of information arduous and expensive has recently been highlighted by one particular government agency as a strategic methodology to control the legitimate release of information.
An unmeritorious request for information is categorised under Section 110 (2).
The IPC’s Case-Note refers to a matter determined in the NSW Civil & Administrative Tribunal (NCAT), where Mr Walker had lodged an access application with Northern Beaches Council in 2021, Walker v Northern Beaches Council (2022) NSWCATAD 8.
Mr Walker has some history with the NCAT prior to that matter, being the recipient of the very first Section 110 Order under the GIPA Act 2009 on 05th February 2015, an order which stipulates he must first obtain the NCAT’s approval to lodge a request for information with the particular agency in this case Northern Beaches Council.
The IPC Case-Note goes on to say correctly that Section 110 (4) requires any recipient of a Section 110 Order to first serve notice of the intended request for information on the particular NSW government agency and also the IPC, before actually applying to NCAT for such approval.
There is no reasoning as to why this is the process and many of the general public feel this stipulation unnecessarily complicates and frustrates the already difficult and expensive process.
In the subject case of 2022, Mr Walker did not first give notice to Northern Beaches Council or the IPC, resulting in the NCAT decision to dismiss his application.
However, the IPC has failed to properly identify the long history of precedent between the NCAT and Mr Walker, where between the date of the imposition of the Section 110 Order of 05th February 2015 and his Application for Information dated 25th August 2021, the NCAT approved (12) twelve of Mr Walker’s applications without any reference to or reliance on Section 110 (4) in any way whatsoever.
“This is a premium example of the inconsistencies the public regularly deals with when entering the NCAT arena. Mr Walker was given (12) twelve precedent decisions where Section 110 (4) was somehow overlooked by each presiding tribunal member, and so it’s completely understandable why Mr Walker followed the NCAT’s proven methodology for his August 2021 application,” stated Telina Webb of NSW Freedom of Information.
“Unfortunately, the IPC’s Case Note gives the false impression the 2022 decision for Mr Walker is the way it’s always been, when the opposite is true. The public relies on caselaw to support their NCAT Applications, and in this case, albeit (12) twelve historical cases over some (6) six years, the NCAT has either completely misinterpreted the legislation or was exercising some kind of discretionary power to overlook those Section 110 (4) parameters.”
This particular IPC Case-Note does not sit isolated in misrepresentation or not quite telling the full story about GIPA cases, particulalry not accurately documenting the full history of recipients and successful appellants of a Section 110 Order.
In October 2021, just weeks after the launch of NSW Freedom of Information, Ms Webb petitioned the IPC concerning its outdated Fact Sheet pertaining to Section 110, which was clearly inaccurate.
The IPC responded by stating the Fact Sheet would not be amended.
The full history of recipients of a Section 110 Order including disclosed costs to the public purse can be viewed here: https://nswfreedomofinformation.net/injurious-clauses-of-the-legislation/section-110/
Contact: IPC, 1800 472 679
The Case-Note makes lengthy commentary on the GIPA Act 2009 Section 110 (4).
Section 110 is a mechanism for NSW Government Agencies to effectively restrain members of the public from requesting access to information, most particularly relating to unmeritorious requests for information, making the public’s legally enforceable right (supposed) to access NSW government information extremely arduous and unnecessarily expensive.
Making the accessing of information arduous and expensive has recently been highlighted by one particular government agency as a strategic methodology to control the legitimate release of information.
An unmeritorious request for information is categorised under Section 110 (2).
The IPC’s Case-Note refers to a matter determined in the NSW Civil & Administrative Tribunal (NCAT), where Mr Walker had lodged an access application with Northern Beaches Council in 2021, Walker v Northern Beaches Council (2022) NSWCATAD 8.
Mr Walker has some history with the NCAT prior to that matter, being the recipient of the very first Section 110 Order under the GIPA Act 2009 on 05th February 2015, an order which stipulates he must first obtain the NCAT’s approval to lodge a request for information with the particular agency in this case Northern Beaches Council.
The IPC Case-Note goes on to say correctly that Section 110 (4) requires any recipient of a Section 110 Order to first serve notice of the intended request for information on the particular NSW government agency and also the IPC, before actually applying to NCAT for such approval.
There is no reasoning as to why this is the process and many of the general public feel this stipulation unnecessarily complicates and frustrates the already difficult and expensive process.
In the subject case of 2022, Mr Walker did not first give notice to Northern Beaches Council or the IPC, resulting in the NCAT decision to dismiss his application.
However, the IPC has failed to properly identify the long history of precedent between the NCAT and Mr Walker, where between the date of the imposition of the Section 110 Order of 05th February 2015 and his Application for Information dated 25th August 2021, the NCAT approved (12) twelve of Mr Walker’s applications without any reference to or reliance on Section 110 (4) in any way whatsoever.
“This is a premium example of the inconsistencies the public regularly deals with when entering the NCAT arena. Mr Walker was given (12) twelve precedent decisions where Section 110 (4) was somehow overlooked by each presiding tribunal member, and so it’s completely understandable why Mr Walker followed the NCAT’s proven methodology for his August 2021 application,” stated Telina Webb of NSW Freedom of Information.
“Unfortunately, the IPC’s Case Note gives the false impression the 2022 decision for Mr Walker is the way it’s always been, when the opposite is true. The public relies on caselaw to support their NCAT Applications, and in this case, albeit (12) twelve historical cases over some (6) six years, the NCAT has either completely misinterpreted the legislation or was exercising some kind of discretionary power to overlook those Section 110 (4) parameters.”
This particular IPC Case-Note does not sit isolated in misrepresentation or not quite telling the full story about GIPA cases, particulalry not accurately documenting the full history of recipients and successful appellants of a Section 110 Order.
In October 2021, just weeks after the launch of NSW Freedom of Information, Ms Webb petitioned the IPC concerning its outdated Fact Sheet pertaining to Section 110, which was clearly inaccurate.
The IPC responded by stating the Fact Sheet would not be amended.
The full history of recipients of a Section 110 Order including disclosed costs to the public purse can be viewed here: https://nswfreedomofinformation.net/injurious-clauses-of-the-legislation/section-110/
Contact: IPC, 1800 472 679