Question: My GIPA applications for NSW police event reports related to a strata fire safety dispute were fully redacted. Does my name need to appear in the reports before I can access them?
We assisted police and strata contractors on two occasions to carry out regulated fire health and safety upgrades involving a non-compliant owner. Police did not name me in their event reports, which meant I couldn’t obtain the related Government Information (Public Access) (GIPA) reports to use as evidence for a contempt application, including an NCAT application under section 247A(1) of the Strata Schemes Management Act 2015.
I provided the Law Enforcement Conduct Commission with photos showing me assisting police at both events, and asked the officers who wrote the reports to amend them to include my name. They did, and I’ve re-applied for the GIPA reports. My earlier applications were fully redacted, and I spent $30 each time.
Why do I need to be named in police reports to access these documents and obtain a sealed certified copy of NCAT orders for use in court proceedings?
Answer: Under the Government Information (Public Access) Act 2009, a valid access application must state the applicant’s name and can be refused where disclosure is against the public interest.
Police documents can be acquired pursuant to section 9 of the Government Information (Public Access) Act 2009 (NSW) (“GIPA Act“). However, it can be refused where disclosure is against the public interest, see Part 2, Div 2 and schedule 1. An application under the GIPA Act can be made to the relevant agency pursuant to section 41. A valid application pursuant to section 41 is only valid if it satisfies all of the conditions below:
- 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 […],
- it must clearly indicate that it is an access application made under this Act,
- it must be accompanied by a fee of $30,
- it must state the name of the applicant and a postal or email address as the address for correspondence in connection with the application,
- it must include such information as is reasonably necessary to enable the government information applied for to be identified. (emphasis added).
I note there is no apparent interaction between section 274A of the Strata Schemes Management Act 2015 (NSW) (“SSMA“), which relates to civil penalties for contravention of an order by NCAT, and an application pursuant to the GIPA Act. Whilst administrative review of a GIPA Act decision is made to NCAT (Part 5, Div 4), that is not made pursuant to the SSMA but pursuant to the GIPA Act itself. Review of a GIPA Act decision is not made to the Law Enforcement Conduct Commission (“LECC“) but to NCAT. The LECC’s object is set out in section 3 of the Law Enforcement Conduct Commission Act 2016 (NSW) (“LECC Act“) and does not include a power to review GIPA Act decisions. The GIPA Act is only referenced in the LECC Act at section 180(5)(j), which states, inter alia, that whilst documents and records of the LECC are subject to secrecy, LECC records are allowed to be disclosed where there is an administrative review of the LECC’s decisions to refuse an application made pursuant to the GIPA Act.
This post appears in Strata News #792.
Matthew Lo Kerin Benson Lawyers E: enquiries@kerinbensonlawyers.com.au P: 02 8706 7060
