Choy v Willoughby City Council

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Choy v Willoughby City Council [2012] NSWADT 277
Hearing dates:	On the papers
Decision date:	21 December 2012
Jurisdiction:	General Division
Before:	Naida Isenberg, Judicial member
Decision:	The decision under review is affirmed
Catchwords:	GIPA application - previous FOI application - different tests - whether further documents exist - legal professional privilege
Legislation Cited:	Government Information (Public Access) Act 2009 Freedom of Information Act 1989 Evidence Act 1995
Cases Cited:	Choy v Willoughby City Council [2010] NSWADT 237 Grant v Downs (1976) 135 CLR 574 Cianfrano v Director-General, Premiers Department NSW &Anor [2004] NSWADT 255 McCabe v Workers Compensation Commission [2012] NSWADT 30
Category:	Principal judgment
Parties:	Guy Choy (Applicant) Willoughby City Council (Respondent)
Representation:	G Choy (Applicant in person) Willoughby City Council (Respondent)
File Number(s):	123118

REASONS FOR DECISION

Background

1. On 28 July 2011, Guy Choy ('the applicant') applied under the Government Information (Public Access) Act 2009('GIPA Act') to the respondent for access to information enumerated in several detailed points ('the access application'), which in general terms, related to a development application. He was provided with some information; other information was said not to exist; and some other information was said to be the subject of a claim for legal professional privilege and he was refused access to that information.

1. The decision was affirmed on internal review. The applicant seeks review of the decision.

1. The applicant made a similar application under the Freedom of Information Act 1989: see Choy v Willoughby City Council [2010] NSWADT 237 ('the FOI case'), but as he was unsuccessful, and in view of the broader provisions of the GIPA Act, he sought access to the same information again.

1. At a planning meeting conducted by the Tribunal the applicant confirmed that he pressed his original application only insofar as it related to:

· the relevant clause of Council's instrument which verifies the General Manager's claim in his letter, dated 31 May 2011, that clause 38 of the Code of Meeting Practice is not applicable with regards to Council's resolution dated 15 June 2004 to refuse the development (DA 2002/1579) ('application claim 3(i)')

· A copy of the council's solicitor's response to his FOI application as recorded in Council files ('application claim 4(i)')

ISSUES

Can the Tribunal be reasonably satisfied that the respondent has provided the applicant with all information in response to application claim 3(i)?

Is there a proper claim for legal professional privilege in respect of the documents referred to in application claim 4(i)?

LEGISLATIVE SCHEME

1. There is a presumption in favour of the disclosure of government information unless there is an 'overriding public interest against disclosure': s.5 GIPA Act.

1. On an application for review to the Tribunal, the onus is on the agency to establish that the decision the subject of review is justified: s 105(1) GIPA Act.

CONSIDERATION

1. The applicant provided several very detailed submissions, all of which I have carefully read. Underlying his application appears to be a concern that in refusing…