Clarke v Blacktown City Council - [2013] NSWADT 36

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Clarke v Blacktown City Council [2013] NSWADT 36
Hearing dates: 16 & 17 July 2012
Decision date: 12 February 2013
Jurisdiction: General Division
Before: S Higgins, Deputy President
Decision:
1.The decision of the respondent is varied by granting the applicant access to the following additional information in Report No AD 300030 and Attachment 1 to that Report:
paragraph 4 and 5 of the Report,
the headings, dates and any other information of a formal nature in Part One and Part Two of Attachment 1,
the information on page 4 and 7 of Attachment 1 that has already been disclosed in the Report,
the information on page 5 and 6 of Attachment 1,
the information on page 8 of Attachment 1 that is the overall rating,
the information inserted by Mr Moore in Part One and Part Two of Attachment 1,
the information in the first 3 columns of the schedule in Part Two of Attachment 1.
2. Within 28 days of this decision, the respondent to provide the applicant with a further copy of the Report and Attachment 1 in accordance with the terms of order 1 above.

Catchwords: Government information - public access - performance review of general manager of a local council - confidential information - personal information - secrecy provision
Legislation Cited: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989 (NSW repealed)
Freedom of Information Act 1982 (Cth)
Government Information (Public Access) Act 2009
Local Government Act 1993
Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR180
Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19
McKinnon v Blacktown City Council [2012] NSWADT 44
McKinnon v Secretary, Department of Treasury [2006] HCA 45
Re Maher and the Attorney General's Department (No 2) (1986) 4 AAR 266
Category: Principal judgment
Parties: Denys Andreleon Lennox Clarke (Applicant)
Blacktown City Council (Respondent)
Representation: P Timmins (Agent for the Applicant)
Sparke Helmore (Respondent)
Office of the Information Commissioner

File Number(s): 113317

REASONS FOR DECISION

Introduction

The applicant, Mr Denys Andreleon Lennox Clarke, seeks review of a decision of the respondent, Blacktown City Council, made under the Government Information (Public Access) Act 2009 (the GIPA Act), in regard to his request for access to government information.

On 9 November 2010, the applicant, a former Councillor of the respondent, made a formal request for access in the following terms:

Linda Tucker, from OIC, has confirmed that the performance of The General Manager of a Council, and the methodology/process by which Councillors monitor and assess it prior presenting a report to the community through Council, is the public interest.

My email to all members of "The Elected Council" on 28 July 2009 and the ADT decision 233 on 30 September 2010(particularly items 23, 24, 25) are relevant.

In the public interest, I require a copy of Report No AD 300030 and attachments (if any).

The applicant had drawn a box round the last sentence of his GIPA request. Attached to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWADT 36
Decision Date: 12 February 2013

CaseChat Overview and Summary

The applicant sought access to certain documents held by the respondent under the Government Information (Public Access) Act 2009 (NSW). The documents in question were a performance review of the General Manager of the respondent council and related attachments. The application was refused on the basis that the documents contained information that was exempt from disclosure under the Act. The applicant appealed the decision to the Land and Environment Court which found in her favour. The respondent then appealed to the Supreme Court of New South Wales.
The central legal issue before the court was whether the documents contained information that was exempt from disclosure under the Government Information (Public Access) Act 2009 (NSW). The court examined the nature of the information contained in the documents and whether it was exempt from disclosure under the secrecy provisions of the Act. The court also considered whether the documents contained personal information that was exempt from disclosure under the Privacy and Personal Information Protection Act 1998 (NSW).
The court found that some of the information contained in the documents was exempt from disclosure under the secrecy provisions of the Act. However, the court also found that other information was not exempt from disclosure and should be released to the applicant. The court found that the respondent had failed to properly apply its mind to the question of whether the information was exempt from disclosure and had not properly balanced the public interest in disclosure against the need to protect the information. The court varied the decision of the respondent to grant the applicant access to certain additional information contained in the documents.

The final orders of the court were that the decision of the respondent be varied to grant the applicant access to certain additional information contained in the documents. The respondent was ordered to provide the applicant with a further copy of the documents in accordance with the terms of the order. The respondent was also ordered to pay the applicant's costs of the appeal.

Orders

Orders of the court

1.The decision of the respondent is varied by granting the applicant access to the following additional information in Report No AD 300030 and Attachment 1 to that Report:

paragraph 4 and 5 of the Report,

the headings, dates and any other information of a formal nature in Part One and Part Two of Attachment 1,

the information on page 4 and 7 of Attachment 1 that has already been disclosed in the Report,

the information on page 5 and 6 of Attachment 1,

the information on page 8 of Attachment 1 that is the overall rating,

the information inserted by Mr Moore in Part One and Part Two of Attachment 1,

the information in the first 3 columns of the schedule in Part Two of Attachment 1.

2. Within 28 days of this decision, the respondent to provide the applicant with a further copy of the Report and Attachment 1 in accordance with the terms of order 1 above.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Clarke v Blacktown City Council [2013] NSWADT 36
Hearing dates:	16 & 17 July 2012
Decision date:	12 February 2013
Jurisdiction:	General Division
Before:	S Higgins, Deputy President
Decision:	1.The decision of the respondent is varied by granting the applicant access to the following additional information in Report No AD 300030 and Attachment 1 to that Report: paragraph 4 and 5 of the Report, the headings, dates and any other information of a formal nature in Part One and Part Two of Attachment 1, the information on page 4 and 7 of Attachment 1 that has already been disclosed in the Report, the information on page 5 and 6 of Attachment 1, the information on page 8 of Attachment 1 that is the overall rating, the information inserted by Mr Moore in Part One and Part Two of Attachment 1, the information in the first 3 columns of the schedule in Part Two of Attachment 1. 2. Within 28 days of this decision, the respondent to provide the applicant with a further copy of the Report and Attachment 1 in accordance with the terms of order 1 above.
Catchwords:	Government information - public access - performance review of general manager of a local council - confidential information - personal information - secrecy provision
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989 (NSW repealed) Freedom of Information Act 1982 (Cth) Government Information (Public Access) Act 2009 Local Government Act 1993
Cases Cited:	Attorney-General's Department v Cockcroft (1986) 10 FCR180 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 McKinnon v Blacktown City Council [2012] NSWADT 44 McKinnon v Secretary, Department of Treasury [2006] HCA 45 Re Maher and the Attorney General's Department (No 2) (1986) 4 AAR 266
Category:	Principal judgment
Parties:	Denys Andreleon Lennox Clarke (Applicant) Blacktown City Council (Respondent)
Representation:	P Timmins (Agent for the Applicant) Sparke Helmore (Respondent) Office of the Information Commissioner
File Number(s):	113317