Cui v Leichhardt Council & Anor

CITATION:

Cui v Leichhardt Council & Anor [2006] NSWADT 298

DIVISION:

General Division

PARTIES:

APPLICANT
Pei Yu Cui

FIRST RESPONDENT
Leichhardt Council

SECOND RESPONDENT
Commissioner of Police, NSW Police

FILE NUMBER:

063006

HEARING DATES:

10 October 2006

SUBMISSIONS CLOSED:

10/10/2006

 
DATE OF DECISION: 

10/16/2006

BEFORE:

Handley R - Judicial Member

CATCHWORDS:

Access to documents – law enforcement & public safety, business affairs

MATTER FOR DECISION:

Principal Matter

LEGISLATION CITED:

Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989

CASES CITED:

Re Scholes v Australian Federal Police (1996) 44 ALD 299
Mickelberg v Australian Federal Police (1984) 6 ALN N176
Kennedy v NSW Police [2001] NSWADT 39
Watkins v Chief Executive, Roads & Traffic Authority [2000] NSWADT 11
Mangleson v Roads & Traffic Authority (NSW) [2005] NSWADT 269
Electoral Commissioner, State Electoral Office v McCabe (GD) [2003] NSWADTAP 28
Vincent Neary v State Rail Authority [1999] NSWADT 107
Stephanie Raethel v Director General, Department of Education and Training [1999] NSWADT 108
Re Saxon and Australian Maritime Safety Authority (Administrative Appeals Tribunal, 19 June 1995 unreported)
Wittingslow Amusements Group v Environment Protection Authority (NSW Supreme Court, Powell J, unreported 23 April 1993)

REPRESENTATION:

APPLICANT
Dr V Wan, counsel

RESPONDENT
G Georgakis, agent

ORDERS:

The decision under review is varied by ordering the release to the Applicant of the site plan for Balmain Police Station dated 25 May 1993 (drawing no N93/133-A01) 28 days after the date of this decision. The decision is otherwise affirmed.

Background

1 On 9 January 2006, Mr Cui applied to the Tribunal for the review of a decision made by an Executive Officer of Leichhardt Council on 14 November 2005 confirming a decision made by the Manager, Administration Services, of the Council on 26 September 2005 to refuse access to plans for Balmain Police Station. In his application, dated 19 September 2005, Mr Cui requested access to “Balmain Police Station plan map in 1989, for example, where is the reception, where is the question room and so on”. Access was refused on the ground that the documents were exempt from release pursuant to Sch 1 of the Freedom of Information Act 1989 (‘the FOI Act’), cl 4 (documents affecting law enforcement and security) and cl 7 (documents affecting business affairs).

2 The Executive Officer who conducted the internal review contacted the NSW Police to ascertain their view as to whether the documents were exempt documents by virtue of the cl 7 business affairs exemption. The NSW Police responded that the release of the plans for Balmain Police Station would have an unreasonable effect on the business affairs of the agency and, in the event that an application for access was lodged with the NSW Police, the documents would be considered exempt pursuant to the cl 4 law enforcement and public safety exemption.

3 With regard to the parties to these proceedings, it is, in my view, appropriate that I exercise the power in s 67(4) of the Administrative Decisions Tribunal Act 1997 to order that the Commissioner…