The hearing of 26th September 2022 was before the Administrative & Equal Opportunity Division of NCAT, a matter concerning a valid request for Government information under the GIPA Act 2009.

It’s been a long fifteen-month wait for the decision, with the initial request for information lodged in March 2022.

The applicant was Telina Webb of NSW Freedom of Information, provider of a free public service to assist the general public in their endeavours to exercise legally enforceable rights under the GIPA Act 2009 (supposed rights), experiencing patience-fatigue.

The Site, www.nswfreedomofinformation.net is also an educational tool exposing agency misconduct in the exercise of statutory functions.  Agencies regularly voice their affront.

The respondent in the proceedings was iCARE.

And the individual who stepped forward with Affidavit evidence on this occasion was its senior privacy officer who also occupied the position of Chair of the NSW Right to Information & Privacy Practitioners Network (NIPPN).

By the date of the proceedings the identity of the Chair was public information available on the world wide web and scattered across the state’s information and privacy officer email inboxes.

She had been Chair of NIPPN since June 2016 so there was no doubt who she was.

Her identity was also made readily available to NIPPN membership in excess of (460) four hundred and sixty, inclusive of a number of private enterprise organisations, with her regularly signing off her emails with her full name and agency contact details, all of which constitutes public information.
Despite the obvious fact that the Chair was undoubtedly well-known to that date, by her own design and choice and through her own penmanship, on 26th September 2022 iCARE’s legal representative Kiri Sue Mattes of the Crown Solicitor’s Office sought anonymity for her public-service client.
Ms Mattes had visited the website www.nswfreedomofinformation.net and downloaded copies of news articles Ms Webb had published as a matter of public interest.
iCARE’s representative was not present at the hearing.  She would eventually inform the Tribunal she would not be available indefinitely, therefore protected from sight, sound and cross-examination shielded by Ms Mattes and wanting the NCAT to see things her way by granting iCARE an Order under Section 64(1) of the NCAT Act 2013.

Given this was no case of national security, indeed not even state or departmental security, the public should be very concerned how a public servant was able to file a Sworn Affidavit, then effectively run for cover, with the Tribunal affording her NCAT witness protection, and all at the expense of the public purse.
Section 64(1) is regularly abused and misused by so-minded government personnel who want all the privilege of contributing to NCAT proceedings, but who then insist on gag orders concealing participation and evidence.  

Generally NCAT grants a Section 64(1) wish without too much convincing, something that if challenged must then endure a long-winded appeal by vulnerable and unrepresented opponents.
This is nothing new to this Applicant Telina Webb who initially experienced this wish-gifting approach in March 2017 also in NCAT.
The substance of this case was very simple; whether or not the information requested by Ms Webb constituted government information under the GIPA Act Schedule 4 (12).
iCARE had confirmed it did hold the requested information.
However, iCARE had decided not to release the information claiming it was non-governmental.  Quite a conundrum.
For the public this was an important test-case, First Mention of this clause of the Act since its inclusion in the legislation some years prior.
The requested information consisted of various NIPPN Minutes of Meetings, the NIPPN Membership List, and Meeting Attendance records.
“It is interesting to me the Tribunal Member made orders not to disclose any of the content of iCARE’s Senior Privacy Officer’s Affidavit / Evidence, yet at numerous points in the decision she herself discloses its content and the Officer’s contact information.  What a contradiction!

There is also the embarrassing situation for the Tribunal where no Tribunal Member, not even the President, has the power to dictate where a party may seek counsel, and what the party may share with that counsel.In my case, my counsel extends to the whole of the population of the NSW public, including professionals, legal professionals, consultants, and any person with an interest and willingness to help me as a non-legal professional.

In my view this granting of a Section 64(1) wish on the whim of an Officer of the Crown Solicitor’s Office, one who educates agency personnel on the application of the GIPA Act 2009 for a fee of approximately $500.00 per seat, is nothing short of favouritism and bias, when the Member knows full well the Tribunal does not have the powers to do so and most certainly has no mechanism whatsoever of policing it.  It’s all bluff! And it’s most certainly no example of open justice,” stated Ms Webb.

“We will see how iCARE responds to these remittal orders.  I personally expect this matter to drag on relentlessly as there is no reason to have any faith this agency will do the right thing; iCARE is regularly in the media for all sorts of identified problems.

I started this particular journey in March 2022, and here we are almost (2) two years later and I’m still left with uncertainty and the matter’s not resolved.  It’s anyone’s guess when this one case will be finalised.  It doesn’t matter to the agency or the Tribunal, it’s all in a day’s work for them, but it’s the public whose life is on hold and I’m of the view that’s the whole intention.  It’s designed to frustrate the public, dissuading it from exercising legally enforceable rights to access NSW government information.

Regardless I am very proud to be the person successful on the First Mention of the GIPA Act 2009 Schedule 4 (12), against the NSW Crown Solicitor and its goliath client iCARE, where I stood alone and unrepresented. Using public monies to hide in the shadows and secure anonymity, and only temporarily, will not change that.

The victory is all the more sweeter when we realise the NSW Crown Solicitor's own Kiri Sue Mattes sits as the state government's GIPA guru, and she failed against a non-legal professional.”
iCARE's response to the NCAT's remittal orders will be shared as a matter of public interest.

Contact:

icarePrivacy-access.network@icare.nsw.gov.au
Kiri Sue MattesKiri.mattes@cso.nsw.gov.au