The decision of Danis v Commissioner of Police [2017] NSWCATAD 144 (Danis), recently handed down by the NSW Civil and Administrative Tribunal (NCAT) on 9 May 2017, is the first to consider the application of s 60(1)(d) of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The section allows an agency to refuse to deal with an access application made under the GIPA Act on the basis that the information is, or has been, the subject of a subpoena or other court order for production, and is available to the Applicant.

The decision provides guidance on the scope of s 60(1)(d) as well as the approach agencies should take when deciding to refuse access applications under the section. It shows encouraging recognition of the utility of the provision, a desire to minimise inefficient use of agency resources, and maximising the efficient administration of the GIPA Act. It also clarifies the broader considerations that agencies and NCAT should have regard to when making discretionary decisions under s 60.

The circumstances of the case

The Applicant, Mr Danis, made an access application to the NSW Police Force (the Agency) for a DVD recording of a police interview with his son. The Agency refused to deal with the application, relying on s 60(1)(d) of the GIPA Act, as the DVD had been the subject of a subpoena for production of documents to the Family Court and was available to Mr Danis to inspect.

The Applicant sought review of the Agency's decision and, at first instance, NCAT delivered ex tempore reasons overruling the decision. In coming to this finding, NCAT noted that the DVD contained information concerning the Applicant's son and that the Applicant had already seen the DVD by virtue of its having been separately produced by the Agency under subpoena. NCAT also took into account public interest considerations for and against the release of the DVD, and consequently ordered that the DVD be released to the Applicant.

On appeal in Commissioner of Police v Danis [2017] NSWCATAP 7 (Danis Appeal Panel), the Agency challenged the adequacy of NCAT's reasoning in respect of s 60(1)(d), as well as its substantive decision to release the DVD.

On the first issue, the Appeal Panel explored the considerations agencies should take into account when making a decision under s 60. Significantly, the Appeal Panel held that in examining s 60 decisions, NCAT should have regard to systemic considerations, such as the role of the section in promoting the efficient administration of the GIPA Act and avoiding the waste of resources, among a non-exhaustive number of other relevant considerations.

On the second issue, the Appeal Panel held that NCAT exceeded its jurisdiction in considering the public interest considerations for and against the disclosure of the DVD in circumstances where the Agency had refused to deal with it.

On remittal, in Danis, NCAT held that the DVD was "available" to the Applicant within the meaning of s 60(1)(d) and that his inability to copy it did not mean that it was not available to him. Secondly, NCAT held that the correct and preferable decision was to exercise the discretion in s 60(1)(d) to refuse the Applicant access to the DVD, thereby affirming the Agency's decision.

In so finding, NCAT considered:

  • the systemic considerations identified by the Appeal Panel, namely the efficient administration of the GIPA Act and avoiding wasteful deployment of limited resources, when exercising the discretion under s 60
  • respect for Court orders in circumstances where the subpoena did not afford the Applicant uplift access, and
  • personal circumstances—in this case the Applicant's relationship as the father of the interviewee on the DVD.

What now for agencies dealing with applications under the GIPA Act?

The decisions in Danis and Danis Appeal Panel are encouraging in their recognition of the effort and resources expended by agencies in responding to GIPA applications. While not determinative of the discretion under s 60, the Appeal Panel and NCAT acknowledged the importance systemic considerations play when exercising the discretion to refuse to deal with an access application. The Appeal Panel addressed this beyond s 60(1)(d), recognising the flexibility afforded to agencies by each of the bases for refusal, which have at their core "the sensible and efficient deployment of agency resources".

More broadly, the decisions provide guidance on what agencies should consider when refusing to deal with an access application under s 60. While the Appeal Panel's considerations are not an exhaustive statement of the matters to be taken into account in any particular case, they provide a helpful starting point for agencies.

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