Posted on October 24, 2021 by Anzer Khan and Carlo Zoppo
Excluded information and invalid GIPA Act applications
The objective of the Government Information (Public Access) Act 2009 (Act) is generally to maintain and advance a system of responsible government that is open and accountable and facilitates access to government information to the public. Although the Act provides a presumption in favour of disclosure, where the information sought is ‘excluded information’, there is a question as to whether the application is valid.
In a recent matter decided by the NSW Civil and Administrative Tribunal in Christopher v Independent Commission Against Corruption  NSWCATAD 256, the Tribunal considered whether information sought was excluded information and whether the agency’s decision about the application being invalid was the correct and preferable decision.
In this blog we focus on the distinction between s14 and s43 as it relates to ‘excluded information’.
The Applicant sought an administrative review of a decision by the Independent Commission Against Corruption (ICAC) for specified government information that ICAC had determined was ‘excluded information’ of the agency and therefore not a valid application pursuant to s 43(1) of the Act.
The Applicant in this case was the solicitor engaged by the directors of Cascade Coal Pty Ltd (Directors).
Clause 2 of Schedule 2 of the Act provides that excluded information in relation to ICAC includes information in relation to ICAC’s corruption prevention, complaint handling, investigative and reporting functions.
Background to application:
ICAC had earlier investigated the Directors which led to corruption findings against them under the Independent Commission Against Corruption Act 1988 (ICAC Act). When the Directors sought a judicial review of the findings made against them, it was dismissed by the NSW Supreme Court. Following that decision, the Directors filed a summons in the NSW Court of Appeal seeking leave to appeal the NSW Supreme Court’s decision.
The Applicant sought information relating to a number of items, including in summary, internal and external communications between ICAC staff and Members of Parliament and journalists relating to the Independent Commission Against Corruption Amendment (Validation) Act 2015 (NSW) (Validation Act) and Independent Commission Against Corruption Amendment Bill 2015 (NSW) (Amendment Bill), communication between ICAC and the NSW Supreme Court in relation to the appeals, any internal document considering or referring to the Validation Act or Amendment Bill and internal records relating to the High Court of Australia decision and the ICAC Act.
The ICAC’s argument
The ICAC submitted the information sought was ‘excluded information’ as set out in Schedules 1 and 2 of the Act, arguing that excluded information is to be given a broad construction. The ICAC argued that the word ‘relates to’ in Schedule 2 should be interpreted widely by the Tribunal (Miller v Director of Public Prosecutions  NSWADT 38 and Bergi v Department of Planning, Industry and Environment  NSWCATAD 243), stating that information can be excluded information even if it was generated indirectly to the exercise of ICAC’s functions.
Further, ICAC submitted that the subject matter of the Validation Act and Amendment Bill related to its investigation and corruption prevention functions, and therefore communications (internal or external) were excluded information.
The ICAC also submitted that information that ‘relates to’ ICAC’s functions, is broad enough to cover all of the matters connected with a particular investigation including its outcome and any further action taken in respect of that investigation, including proceedings challenging any earlier findings and therefore, the information sought relating to the appeals was ‘excluded information’.
Tribunal findings as to the difference between s43 and s14
Section 43(1) of the Act provides that an access application cannot be made to an agency for access to information that is excluded information of the agency.
The Senior Member found that this section must be distinguished from s14(1) of Act in regard to information that is ‘excluded information’.
Section 43(1) has the effect of determining whether the application is an invalid application whereas s14(1) has the effect of determining whether there is a conclusively presumed overriding public interest against disclosure of the information ‘held’ by the agency (including excluded information held by other agencies).
If a person makes an application for access to an agency listed in cl 2 of Sch 2 specifically seeking access to information that ‘relates to’ specified functions of the agency in that Schedule, this is an application for ‘excluded information’ and invalid under s 43(2).
Where an agency relies on s 43(2), there is no obligation on the agency to first conduct a search for the information it holds that is responsive to the application as long as the agency is satisfied that the terms of the application is in fact an application for ‘excluded information’ in that information sought ‘relates to‘ specified functions of the agency in Sch 2 of GIPA Act.
The Senior Member noted that section 14 has a wider application to that of s 43(2) in that it also applies to excluded information’ of an agency listed in cl 2 of Sch 2 that is held by another agency.
The Tribunal disagreed with the Applicant’s submission that ICAC’s investigatory functions end when findings are made, and referred to s18 of the ICAC Act that specifically gives power for ICAC to continue an investigation or furnish reports in connection with an investigation despite any proceedings before a court or tribunal.
The decision can be viewed here.
We have previously blogged on an NCAT decision that dealt with an application that sought ‘excluded information’ that can be viewed here.
If you have any questions about this blog or the GIPA Act in general please contact Carlo Zoppo on 8235 9705 or Anzer Khan on 8235 9717.