Fraud Detection & Reporting Pty Ltd v Department of Justice [2018] NSWCATAD 63

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Fraud Detection & Reporting Pty Ltd v Department of Justice [2018] NSWCATAD 63 Hearing dates: 12 February 2018 Date of orders: 22 March 2018 Decision date: 22 March 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: S Leal, Senior Member Decision: 1. The decision of the respondent dated 7 April 2017 is affirmed. Catchwords: ADMINISTRATIVE LAW – access to government information – access application – public interest considerations against disclosure - excluded information – complaints handling, investigative and reporting functions. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Interpretation Act 1987 (NSW) Cases Cited: Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130 Sinclair v Psychology Council of NSW [2017] NSWCATAD 8 Category: Principal judgment Parties: Fraud Detection & Reporting Pty Ltd (Applicant) Department of Justice (Respondent) Representation: Solicitors:

J Zidar (for the Applicant) Department of Justice (Respondent) File Number(s): 2017/000284196 Publication restriction: The names of any witnesses to these proceedings and the names of any staff members of the Office of the Legal Services Commissioner or the Department of Justice referred to in these proceedings must not be disclosed - section 64 (1) (a) of the Civil and Administrative Tribunal Act 2013.

Reasons for decision 1. The applicant in this application for review is a company, Fraud Detection & Reporting Pty Ltd ('Fraud Detection & Reporting'), of which Mr Joe Zidar is a director. Mr Zidar is appearing on behalf of Fraud Detection & Reporting in this application for review of a decision by the Office of the Legal Services Commissioner ('OLSC') to refuse to provide information requested by Mr Zidar. 2. According to the Department of Justice, who is the respondent in this matter, the requested information is 'excluded material' in accordance with the Government Information (Public Access) Act 2009 (NSW) ('the GIPA Act') and for this reason, the respondent submits that the access application by Fraud Detection & Reporting is invalid.

Issue for determination 1. The issue for determination is whether the access application is valid. For the reasons set out below, I have determined that the access application is not a valid application because it requests access to information that is 'excluded information' under Schedule 2 of the GIPA Act.

Background 1. On 8 February 2017, Mr Joe Zidar applied to the Department of Justice for access to information held by the OLSC. 2. The application, which was made under the GIPA Act, related to complaints made by Mr Zidar to the OLSC about two solicitors. Both complaints were subsequently dismissed by the OLSC. 3. Mr Zidar alleges the two solicitors attempted to defraud the estate of Mr Zidar's late grandfather. One solicitor acted for the estate of Mr Zidar's late grandfather ('the estate solicitor') while the other acted for Mr Zidar's uncle who, together with Mr Zidar's mother, is an executor of the estate. 4. In relation to Mr Zidar's complaint against the estate solicitor, the applicant sought the following information from the OLSC: * All communications received by the OLSC relating to the complaint, including emails, letters and video/voice recordings, between 4 April 2016 to 5 February 2017; * All communications contained within the OLSC's complaints register (Records Management System) relating to the complaint, including complaint cases/investigative notes/file logs and complaint phone logs (inbound and outbound), between 4 April 2016 and 5 February 2017); * All communications sent by the OLSC from any party, for the period between 4 April 2016 to 5 February 2017. 1. In relation to the complaint against his uncle's solicitor, Mr Zidar sought the following information from the OLSC: * All communications received by the OLSC relating to the complaint, from any party and including emails, letters and video/voice recordings for the period between 30 July 2016 to 5 February 2017; * All communications contained within the OLSC's complaints register (Records Management System) relating to the complaint, including complaint cases/investigative notes/file logs and complaint phone logs (inbound and outbound) for the period between 30 July 2016 to 5 February 2017; * All communications sent by the OLSC from any party, for the period between 30 July 2016 to 5 February 2017, and including emails, letters and video/voice recordings. 1. Mr Zidar also sought access to the complaints handling procedure manual for the OLSC. 2. The respondent's decision that Mr Zidar's access application was invalid – on the basis that the information sought was 'excluded information' under the GIPA Act – was upheld on internal review. 3. Mr Zidar sought external review of this decision by the Information and Privacy Commission. In its report dated 22 August 2017, the Information and Privacy Commission made no recommendation in relation to the internal review decision, which the Information and Privacy Commission found to be justified. 4. The report of the Information and Privacy Commission ('the report') found that the information sought by Mr Zidar was excluded information under Schedule 2 to the GIPA Act because: * the information sought related to the complaint handling function of the OLSC; * the complaint handling function of the OLSC is listed in Schedule 2 to the GIPA Act; and * information that "relates" to the functions of agencies listed in the note in Schedule 2 to the GIPA Act is "excluded information of an agency". 1. On the basis that Mr Zidar had applied for excluded information, the report found that the internal review decision was justified because section 43 of the GIPA Act provides that an access application is considered invalid if it is made for "excluded information of an agency". 2. In considering whether the information sought by Mr Zidar should be provided to it by reason of the respondent's open access information requirements under the GIPA Act, the report found that the complaint handling function of the OLSC extended to its complaints handling procedure manual. It was therefore not to be considered as open access information and, consequently, the respondent was not required to provide it to Mr Zidar through the channel of open access information. 3. On 17 September 2017, Fraud Detection and Reporting Pty Ltd (the company of which Mr Zidar is a director) lodged an application for review to this Tribunal. The decision under review is the internal review decision made by the Department of Justice on 7 April 2017, namely that Mr Zidar's access application is invalid under section 43 of the GIPA Act. 4. Section 104 of the GIPA Act provides that any person who could be aggrieved by a review decision of this Tribunal has a right to appear and be heard in any proceedings before this Tribunal in relation to the review. 5. 'Person' is defined in Schedule 4 to the GIPA Act as follows: person includes an agency, the government of another jurisdiction (including a jurisdiction outside Australia) and an agency of the government of another jurisdiction. Note. This definition does not limit the definition of person in the Interpretation Act 1987, which includes an individual, a corporation and a body corporate or politic. 1. In light of this broad interpretation of 'person' to include a corporation, and given that Mr Zidar is the director of Fraud Detection and Reporting Pty Ltd, I am satisfied that Fraud Detection and Reporting has a right to appear as the applicant and to be heard in these proceedings. 2. In the application for review, Fraud Detection and Reporting sets out the following grounds for the application: * Fettered decision making * Deficient reasoning * Incorrectly applying statutory requirements under GIPA Act 2009 * Failure to acknowledge correspondence provided * Practical injustice * Failure to have regard to material evidence. 1. As the application for review was lodged less than 20 days after Mr Zidar had been notified of the completion of the Information Commissioner's review, the application for review has been lodged within time. (section 101 of the GIPA Act)

Evidence before the Tribunal 1. A hearing was held before me on 12 February 2018.

Mr Zidar 1. Mr Zidar gave evidence outlining the background to this matter, which has its genesis in a probate issue relating primarily to the estate of Mr Zidar's grandfather, brief details of which are set out above. 2. In relation to his complaint against the estate solicitor and his uncle's solicitor, it is Mr Zidar's submission that officers of the OLSC did not act in good faith. He disputes the decision by the OLSC to withhold the agency's complaints procedure manual, noting that it is difficult for him to establish a relevant breach without the manual. He noted that many agencies have openly available manuals including the NSW Police Force and the NSW Department of Education and suggested that the manual could be redacted and inspected rather than copied.

Assistant Manager of the Office of General Counsel of the Department of Justice 1. In a statement dated 8 November 2017, the assistant manager of the Office of General Counsel of the Department of Justice ('the assistant manager') confirmed that the OLSC had been requested to provide the information requested by Mr Zidar in his access application and that a search had been conducted. 2. Advice had also been sought as to whether information requested by Mr Zidar, including the internal complaints handling manual, related to the 'complaint handling, investigative review and reporting functions' of the OLSC and if so, whether the OLSC would consent to the release of the documents sought to be disclosed to Mr Zidar. 3. The OLSC advised that the complaint handling manual sets out: * the systems and working procedures of the OLSC; * how it handles complaints; * how complaints are tracked; * case management procedures; * how to investigate matters, reviews, law practice audits; and * management procedures and delegations. 1. The OLSC found that those functions relate to its complaint handling, investigative, review and reporting functions which is 'excluded information' in Schedule 2 of the GIPA Act, and refused to consent to the release of the manual to Mr Zidar. 2. The assistant manager gave oral evidence in these proceedings. He confirmed that the applicant's access application had been received on 8 February 2017, a decision was written and consent had been sought to release the relevant material. This consent was not provided. The assistant manager confirmed that the requested material was found to be 'excluded information' under section 43 of the GIPA Act. 3. He did not believe that section 16 of the GIPA Act, which mandates agencies to provide advice and assistance to a person making an access application, was relevant to the applicant's access application. Rather he expressed the view that section 16 of the Act was designed to assist applicants where the scope of their request is unclear. By contrast, the scope of Mr Zidar's request was clear. He apologised to Mr Zidar that the decision in relation to the access application had not been made within 5 working days of its receipt.

Senior Mediation and Investigation Officer, Office of the Legal Services Commissioner, Department of Justice 1. The Senior Mediation and Investigation Officer, Office of the Legal Services Commissioner, Department of Justice ('the senior officer') gave oral evidence in these proceedings. In relation to Mr Zidar's access request, he confirmed that he made a search of all databases to confirm that all relevant information had been accounted for. 2. He confirmed that Mr Zidar had lodged two complaints with the OLSC: one in May 2016, the investigation of which was completed around 31 May 2016; and a second complaint in July 2016. 3. The second complaint by Mr Zidar had not initially been identified as a new complaint but has now been investigated in accordance with the OLSC's complaint handling procedure, with Mr Zidar being advised of the outcome of the complaint on 11 April 2017. 4. The senior officer confirmed that no consent had been given to the release of the procedure manual. He confirmed that some procedural information was contained on the website but that extra information is not on the website. 5. He confirmed that the OLSC has released to Mr Zidar all the correspondence that Mr Zidar had provided to the OLSC.

Additional material 1. Contained on file is a print out of tweets from a Twitter account called 'Joe Zidar' with a stampeding bull as the profile picture for the account. The relevant tweets name staff members of the OLSC noting that one staff member: refuses to discuss GIPA application. Seems very STRESSED !!' and that both staff members are protecting the NSW OLSC by refusing to 'release one document under GIPA…Stay tuned. 1. On the evidence before me, I am satisfied that this account is managed by Mr Joe Zidar. 2. Also contained on file is a letter dated 12 July 2017 from the General Counsel of the NSW Department of Justice to Mr Zidar, which states in part that: Since 20 February 2017 staff within the Open Government, Information and Privacy Unit (OGIP) Office of the General Counsel have received 38 emails from your regarding both formal access applications and the application for internal review. On many occasions your emails were copied to numerous other individuals. Staff of the OGIP Unit have indicated that they perceive the content and tone of many of your communications to be threatening, and this has resulted in them experiencing significant levels of stress. 1. In this letter, Mr Zidar is advised that any communication from him will only be accepted if delivered by Australia Post and that 'any correspondence sent via email will be blocked and deleted without being read to protect staff from experiencing further stress arising from your emails.' 2. Examples of the email content emanating from Mr Zidar's email account include expletives and the following notes: I MADE a PROMISE to my Late GRANDMOTHER that I WOULD make SURE that HER BEQUEATHS, WISHES and INTENTONS, would be FULFILLED and NO FUCKING JUDGE is GOING to TELL me OTHERWISE' (22 May 2017) Over the NEXT (72) HOURS, I will DEMONSTRATE to YOU and YOUR TEAM only the IMPORTANCE of MANAGING a MATERIAL RISK. I would BE HONOURED for you to CONSIDER ME a MATERIAL RISK. Now if I LOOSE my JOB, you WILL LOOSE yours TOO…I am setting up (5) NEW emails tonight…From 1 JULY 201, I ANTICIPATE that I will RECEIVE A CERTIFICATE stating that I am BLACK BELT QUALIFIED in SIX SIGMA.' (22 May 2017) If FrdDetRpt are FORCED to use our Solicitor to obtain a response, I am advised that this might be considered a HARASSMENT and or BULLYING. (23 MAY 2017) 1. Also contained on file are copies of correspondence between Mr Zidar and the OLSC.

Confidential material 1. To assist the Tribunal to decide whether there is an overriding public interest against the disclosure of the information requested by Mr Zidar, the relevant documents were provided to the Tribunal on a confidential basis. 2. The documents include a copy of the Case Management Procedures & Guidelines for the OLSC. They also include documents relating to the complaints lodged by Mr Zidar to the OLSC. 3. It is not in dispute that Mr Zidar has now been provided with copies of all correspondence sent by him to OLSC.

Legal Issues

Correct and preferable decision 1. The task of this tribunal, on review of a decision to grant access, is to make the correct and preferable decision having regard to the material then before it. (section 63 of the Administrative Decisions Review Act 1997)

Validity of access application 1. Section 43 of the GIPA Act provides as follows: (1) An access application cannot be made to an agency for access to excluded information of the agency. Note. Information is excluded information of an agency if it relates to any function specified in Schedule 2 in relation to the agency. (2) An application for government information is not a valid access application to the extent that the application is made in contravention of this section. 1. Schedule 1 to the GIPA Act sets out information for which there is a conclusive presumption of an overriding public interest against disclosure. This includes 'excluded information', as set out in clause 6 to Schedule 1, which provides as follows: 6 Excluded information (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of information that is excluded information of an agency, other than information that the agency has consented to the disclosure of. (2) Before an agency decides an access application by refusing to provide access to information on the basis that it is excluded information of another agency, the agency is required to ask the other agency whether the other agency consents to disclosure of the information. (3) A decision that an agency makes to consent or to refuse to consent to the disclosure of excluded information of the agency is not a reviewable decision under Part 5. 1. Schedule 4 to the GIPA Act provides that "excluded information of an agency specified in Schedule 2 means information that relates to any function specified in that Schedule in relation to the agency." 2. Schedule 2 to the GIPA Act sets out the excluded information of particular agencies, which includes the review, complaint handling, investigative and reporting functions of the Office of the Legal Services Commissioner. 3. The following note is contained in Schedule 2 to the GIPA Act: Note. Information that relates to a function specified in this Schedule in relation to an agency specified in this Schedule is excluded information of the agency. Under Schedule 1 it is to be conclusively presumed that there is an overriding public interest against disclosure of excluded information of an agency (unless the agency consents to disclosure). Section 43 prevents an access application from being made to an agency for excluded information of the agency. 1. According to Sinclair v Psychology Council of NSW [2017] NSWCATAD 8, clause 6(1) of Schedule 1 to the GIPA Act is to be interpreted having regard to the words in the note inserted by Parliament. That note includes, "Information that relates to a function specified in this Schedule…". 2. In Pertsinidis v Illawarra Shoalhaven Local Health District [2014] NSWCATAD 130, the words "relates to" were found to be of the "widest import". 3. Relevant issues of statutory interpretation are discussed in some detail in Sinclair v Psychology Council of NSW [2017] NSWCATAD 8: In interpreting a statutory provision, a construction that would promote the purpose or object underlying the Act, is preferred to a construction that would not: section 33, Interpretation Act 1987. Section 3 of the Government Information (Public Access) Act 2009 sets forth the following objects. "… to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure." In stating the objects in this way, the Parliament has emphasised that the existence of an overriding public interest against disclosure is a matter which should result in restricting access to government information, even if access might otherwise be granted. The objects give no support to a restrictive interpretation of the phrase, "relates to", in the note to clause 6(1). On the contrary, they are consistent with it being given its full and ordinary meaning. According to section 43 of the GIPA Act, an access application cannot be made to an agency for access to excluded information of the agency. 1. Under section 107 of the GIPA Act, the Tribunal is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

Consideration 1. As set out above, a copy of each of the documents to which Mr Zidar had sought access has been provided to the Tribunal on a confidential basis. I have examined each of the documents and I am satisfied that they all relate to the complaint handling, investigative or reporting functions of the OLSC. This includes the Case Management Procedures and Guidelines produced by the OLSC which, I am satisfied, provide instructions on how staff members of the OLSC are to handle and investigate complaints. 2. On this basis, I find that each of the documents to which Mr Zidar sought access constitute excluded information as set out in clause 2 to Schedule 2 of the GIPA Act, which includes as excluded information that which relates to the complaint handling, investigative and reporting functions of the OLSC. 3. On this basis, I find that there exists an overriding public interest against disclosure. (see Schedule 1 to the GIPA Act). 4. Having found this, I am bound by s107 of the GIPA Act to ensure that I do not disclose this information in these reasons for decision, or elsewhere. 5. Where an overriding public interest against disclosure exists, it is open to an agency to decline access to the information. 6. On the evidence before me, I am satisfied that, prior to deciding Mr Zidar's access application by refusing to provide access to information on the basis that it is excluded information, the Department of Justice asked whether the OLSC consented to the release of the information. On the evidence before me, I am satisfied that this request was made on 13 and 15 February 2017 and that the request to grant consent to the release of the documents was refused. On the evidence before me, I am satisfied that the OLSC continues not to consent to the release of the excluded information. 7. As the refusal of such consent is not reviewable under clause 6(3) of Schedule 1 to the GIPA Act, I have not considered any reasons for such a refusal. 8. I have considered the grounds set out in the application for review to this Tribunal and, on the evidence before me, am not satisfied that they have been made out. There is no evidence before me of fettering decision making or deficient reasoning by the respondent nor am I satisfied that the respondent incorrectly applied statutory requirements under the GIPA Act or the respondent displayed 'practical injustice' in its decision making. Having considered the wealth of correspondence between Mr Zidar and the respondent, I cannot be satisfied ether that there has been a failure to acknowledge correspondence provided by Mr Zidar or that any such failure is relevant to the issue before me. 9. On the basis that the information requested by Mr Zidar is excluded information and that there is therefore an overriding public interest against disclosure, I affirm the decision of the Department of Justice on 7 April 2017 that the information sought could not be subject to a valid access application under the terms of section 43 of the GIPA Act and is therefore an invalid application under the GIPA Act.

Non-publication order 1. In an earlier interlocutory matter heard by Principal Member Titterton, Mr Zidar gave an undertaking on behalf of Fraud Detection and Reporting not to publish any information on its website about the application, including the orders and directions of the Tribunal, until the final disposition of the matter. 2. Before me, the respondent sought an order prohibiting the disclosure of the names of any witnesses or staff members of the Office of the Legal Services Commission and the Department of Justice in these proceedings. According to the respondent, Mr Zidar is known to publish extracts of information provided by the respondent on social networking and internet sites which are extracted out of context. 3. Contained on file, and set out in part above, is a tweet by Mr Zidar which names relevant staff members and accuses them of protecting the OLSC. 4. Also contained on file are emails which, on the evidence before me, I am satisfied are from Mr Zidar to staff members of the OLSC, excerpts of which are set out above, some of which contain expletives. I accept that the content of the emails and the naming of staff members on social media could cause stress for the named members and that they may feel threatened by such a public naming. 5. For these reasons, I am satisfied that a non-publication order should be made in this matter under s64(1)(a) of the Civil and Administrative Tribunal Act in the following terms: The names of any witnesses to these proceedings and the names of any staff members of the Office of the Legal Services Commissioner or the Department of Justice referred to in these proceedings must not be disclosed.

Order 1. The decision of the respondent dated 7 April 2017 is affirmed.

********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 March 2018