Posted on July 11, 2018 by Liam Mulligan and Carlo Zoppo

When should you decide a discount application for GIPA processing charges?

In the recent matter of Shoebridge v Office of Environment and Heritage [2018] NSWCATAP 144, the Appeal Panel of the NCAT considered whether a government agency was obliged to determine an application for a discount to a processing charge before it was ready to make a decision on access to the information.

While this case really turned on whether the Tribunal had jurisdiction to review the purported decision of the agency, the decision of the Senior Member at first instance and the submissions of the Information Commissioner provide some useful insight into when decisions are to be made relative to discounts of processing charge.

Facts

The applicant, David Shoebridge, made an application to the Office of Environment and Heritage seeking access to certain information under the Government Information (Public Access) Act 2009 (‘GIPA Act’). At the same time as making the application, he also applied for a 50% discount to any processing charges, pursuant to s66 of the GIPA Act, on the basis that the information would be ‘of special benefit to the public generally’.

OEH advised Mr Shoebridge that they would determine the application for a discount once they had reviewed the information and were in a position to make a decision about access. However, OEH did require Mr Shoebridge to pay an advance deposit for the processing charges. Mr Shoebridge applied for a review of these decisions.

At first instance, the NCAT found that it did not have jurisdiction to review OEH’s decision to defer determination of the discount application, as it was not a ‘reviewable decision’ under s 80 of the GIPA Act. The Tribunal found that it did have power to review the decision to require an advance deposit.

On appeal Mr Shoebridge argued that the OEH was required to determine his application for a discount when requiring him to pay an advance deposit. The OEH argued that a public benefit discount applies only to a processing charge actually imposed by the agency. As the decision to impose a processing charge is not made until after the agency has dealt with the application, it submitted that it was not appropriate to make a decision at some earlier stage.

The Information Commissioner (‘IC’) exercised her right to appear and be heard in the proceedings pursuant to s 104(1) of the GIPA Act. The IC submitted that an agency could determine an application for a discount at any point in the process and that an early consideration of an application would enable applicants to make an informed choice about their application and, where appropriate, consider amending the application to reduce the scope of the information sought: GIPA Act, s 49(1) and (2).

Jurisdiction of the NCAT

The Tribunal’s reasoning, at first instance and on appeal, concerned whether the OEH’s decision to defer determination of the public benefit discount application was a decision which could be reviewed.

Section 80 of the GIPA Act sets out the decisions which are reviewable (i.e. subject to the NCAT’s “administrative review jurisdiction”) for the purposes of the GIPA Act. Section 80 provides that the following decisions are reviewable:

(j)  a decision to impose a processing charge or to require an advance deposit,

(k)  a decision to refuse a reduction in a processing charge,

Finding

At first instance, the Tribunal found that the only reviewable decision before the Tribunal was the decision to require an advance deposit: s 80(j). Accordingly, it applied the reasoning in National Tertiary Education Union v Southern Cross University [2015] NSWCATAD 151 at [36] that:

The GIPA Act contemplates that an applicant’s entitlement to a discount of a processing charge is to be determined at the time access is granted, not at the time an advance deposit is required.

On appeal, Mr Shoebridge submitted (amongst 8 grounds of appeal) that the Tribunal “erred in holding that no reviewable decision was before the Tribunal”.

Ultimately, the Appeal Panel dismissed the appeal, finding that the Tribunal did not have jurisdiction to consider the application to review. The Appeal Panel also noted that Tribunal’s decision as to the time when the application must be determined was not an issue that was to be determined when considering the issue of jurisdiction.

Nonetheless the decision of the Senior Member and the submissions of the Information Commissioner provide confirmation as to when a decision as to the discount of processing charges is to be applied.

To discuss this blog, please contact Liam Mulligan on 8235 9725 or Carlo Zoppo, Partner on 8235 9705.