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Department of Climate Change, Energy, the Environment and Water
Government Information
(Public Access) Act 2009
INTERNAL REVIEW - NOTICE OF DECISION
Applicant:
Dre
File Ref:
Original GIPA Ref: 24-3443 – Internal Review Ref 24-3478
Decision maker:
Ann Gibson, Senior Information and Privacy Officer
Date of decision:
24 June 2023
Table of Contents
1.
Decision………………………………………………………………………………1
2.
Conduct of internal review………………………………………………………….1
3.
Summary of access application……………………………………………………1
4.
Reasons for decision and findings ……………………………………………… 2
5.
Review rights.………………………………………………………………………..4
6.
Further information. ………………………………………………………………..4
1. Decision
I am authorised by the principal officer, for the purposes of section 9(3) of the
Government
Information (Public Access) Act 2009 (‘GIPA Act’), to decide your GIPA Internal Review application
which was received on 9 June 2024. Your application became valid that same day following the NSW
Department of Climate Change, Energy, the Environment and Water’s (‘DCCEEW’s’) waiver of the
Internal Review application fee in the amount of $40.00.
Following review of the information provided for internal review and the original decision-maker’s
decision, I have decided to uphold the original decision.
I find that your access application, GIPA Ref: 24-3443, is invalid as it does not meet the requirements
under section 41(1)(a)-(e) of the GIPA Act which sets out how to make an access application.
In this Notice of Decision, I wil explain my reasons. To meet the requirements of section 61 of the
GIPA Act, I need to tel you:
a) the reasons for my decision and the findings on any important questions of fact underlying
those reasons.
2. Conduct of internal review
This internal review is conducted in compliance with section 84 of the GIPA Act. I have made my
decision as if the decision being reviewed had not been made and my decision is made as if it were
being made when your access application was original y received. I am no less senior than the person
who made the original decision.
3. Summary of access application
On Monday 27 May 2024 your formal request for access to information, made under the Government
Information (Public Access) Act 2009 (GIPA Act), was received by DCCEEW. Your request sought
information in relation to the Kariong Hieroglyphs Assessment Report.
I note you advise you did make a request for this information through the Right to Know website on 12
May 2024 which was acknowledged as a GIPA request by the Regulatory Practice and Services
Division NSW Environment Protection Authority on 14 May 2024.
The Senior Administrative Officer, Governance, Strategic Services and Advice responded as follows:
‘
We do not have any record of receiving a formal GIPA request from you.
Please note that under the NSW GIPA Act a formal request must be
accompanied by a $30 application fee to be considered valid. For this
reason any requests submitted via the Right To Know website are
considered informal requests.’
In support of this advice, I refer you to section 8 of the GIPA Act: in particular to s.8(1) and (3) which
state:
(1) An agency is authorised to release government information held by it to a
person in response to an informal request by the person (that is, a request
24-3478 Internal Review
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Notice of Decision
that is not an access application) unless there is an overriding public interest
against disclosure of that information.
(3) An agency cannot be required to disclose government information pursuant
to an informal request and cannot be required to consider a informal request
for government information.
Following receipt of the advice from the Senior Administrative Officer, you made the above-mentioned
formal request for access to the Kariong Hieroglyphs information sought.
4. Reasons for decision and findings on any important questions of fact
underlying those reasons
Legislative requirements when making a GIPA access application
As mentioned above, when making an access application it must meet the requirements of s. 41
of the GIPA Act which sets out:
(1) An application or other request for government information is not a valid access
application unless it complies with the fol owing requirements (the formal
requirements) for access applications –
(a) it must be in writing sent by post to or lodged at an office of the agency
concerned or made in the manner approved by the agency under
subsection (2),
(b) it must clearly indicate that it is an an access application made under
this Act,
(c) it must be accompanied by a fee of $30,
(d) it must state the name of the applicant and a postal or email address as
the address for correspondence in connection with the application,
(e) it must include such information as is reasonably necessary to enable
the government information applied for to be identified.
(2) An agency may approve additional facilities for the making of an access
application or the payment of an application fee.
(3) An access application is not considered to have been received by an agency
until it is actual y received by the agency.
Findings
I note the fol owing in relation to your access application:
• in respect of s.41(c), your application was not accompanied by the fee of $30 although being
advised by NPWS that you would need to lodge a formal GIPA request for the information
sought and pay the application fee of $30.
• DCCEEW did not waive or reduce the application fee as it is entitled to do under s127 of the
Act, advising you accordingly in an email dated 28 May 2024 from Jackson Wong.
• although a discount of the
processing charge is permitted under s.66(1) of the GIPA Act, the
discount only applies to the processing charge and
not the application fee.
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Notice of Decision
• in relation to s.41(d), your application does not state your name rather it provides the
descriptor ‘DRE’. Although ‘name’ is not specifically defined in the GIPA Act, the expectation
is that an applicant wil provide their legal name i.e., their first name and last name, without
the use of initials or nicknames, as it appears on an applicant's source documents such as
Driving Licence, Concession cards etc. ‘DRE’ is information that is insufficient to properly
meet the requirement under this provision as it is unclear whether it is a representation of
initials, first or second name or a nickname.
• in regard to s.41(e), your email dated 26 May 2024 did not include such information as is
reasonably necessary to enable the government information applied for to be identified.
Although you may have articulated this previously to DCCEEW’s National Parks and Wildlife
Services (‘NPWS’) Branch, it did not accompany your access application, nor was there any
timeframe given to assist the search for the particular information sought.
Decisions in support
s.41(1) (a)-(e) -
In support of the above findings I refer you to the below cases.
The Appeal Panel decision in
Department of Communities and Justice v Zonnevyl e [2020]
NSWCATAP 126 confirms that an application for government information cannot be severed into both
valid and invalid parts because an application must comply with all of the requirements in section
41(1) (a)-(e) to be a valid 'access application' within the meaning of section 4 of the GIPA Act.
The Appeal Panel (at [32]-[411) set out its analysis for its statutory interpretation and a purposive
construction of the text of the requirements under section 41 of the GI PA Act. The Appeal Panel
•
On a plain reading of the text of section 41 (1), each of the requirements at paragraphs (a) -
(e) must be complied with (at [37]).
s. 66 – Discounted processing charge – special public benefit
In support of application for special public benefit the Tribunal found in
Shoebridge v Forestry
Corporation (2016) NSWCATAD 93 stated that section 66 (1) of the GIPA Act provides that an
applicant is entitled to a 50% reduction in a
processing charge imposed by an agency if the agency
is satisfied that the information applied for is of special benefit to the public general y.
In this case the Tribunal found that Mr Shoebridge
had made out the requirements of section 66,
finding that there should be a 50% reduction in the processing fees and charges to be paid by Mr
Shoebridge.
As mentioned, consideration given to special public benefit relates only to processing charges, not to
the application fee.
To assist you in making future requests for ‘special public benefit’ it would be helpful for you to
provide the reason/s to the agency to aid its assessment of entitlement to discounted processing
charges.
This decision is reviewable under s.80 of the
GIPA Act.
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Notice of Decision
5. Review rights
If you disagree with any of the decisions in this Internal Review you may seek a review under Division
3 and Division 4, respectively of the GIPA Act. Before you do so, I encourage you to contact me to
discuss your concerns. My contact details are set out below.
You have two review options:
•
external review by the Information Commissioner; or
•
external review by the NSW Civil and Administrative Tribunal (NCAT).
There is a time limit for lodging a review
You have 40 working days from the date of this Notice to apply for a review by the Information
Commissioner or NCAT.
There are further resources available to assist you
To assist you, I have enclosed a fact sheet published by the Information and Privacy Commission
NSW (IPC), entitled Your review rights under the GIPA Act. You wil also find some useful information
and frequently asked questions on the IPC’s website:
www.ipc.nsw.gov.au.
You can also contact the IPC on freecall 1800 IPC NSW (1800 472 679).
6. Further information
If you have any questions about this notice or would like any further information, please contact me by
telephone on (02) 9934 0858, mobile 0418 480 919 or via email
xxx.xxxxxx@xxxx.xxx.xxx.xx
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Document Outline
