Curtin v Lord Howe Island Board

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Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Curtin v Lord Howe Island Board [2017] NSWCATAD 86
Hearing dates: 4 November 2016
Date of orders: 27 March 2017
Decision date: 27 March 2017
Jurisdiction:Administrative and Equal Opportunity Division
Before: S Montgomery, Senior Member
Decision:

1. The decision under review is affirmed in regard to the personal information contained in the document identified as document 46.
2. The matter is remitted for redetermination in regard to the personal information contained in the cover page of the document identified as document 28. The redetermination is to be completed by 28 April 2017.
3. The decision under review is otherwise set aside. In its place the decision is made that the information that has been withheld is released.
4. The matter is listed for further case conference on 30 May 2017 at 10.30 am.

Catchwords: Government information – Client legal privilege – Lack of evidence to support claims of privilege - Whether claims of privilege successful – Personal information – Balance of public interest considerations in favour of release.
Legislation Cited: Government Information (Public Access) Act 2009
Civil and Administrative Tribunal Act 2013
Evidence Act 1995
Cases Cited: AIN v Medical Council of New South Wales [2015] NSWCATAP 241
Archer Capital 4A Pty Ltd as trustee for the Archer Capital Trust 4A v Sage Group PLC (No 2) [2013] FCA 1098
Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252
CCB v Department of Education and Communities [2015] NSWCATAD 145
Meriton Property Services Pty Limited & Ors v UrbanGrowth NSW [2017] NSWCATAD 71
Salmon v Corrective Services NSW [2016] NSWCATAD 257
Thompson & Ardill v The Lord Howe Island Board [2003] NSWADT 193
Category:Principal judgment
Parties: Peter Curtin (Applicant)
Lord Howe Island Board (Respondent)
Representation:

P Curtin (Applicant in person)

  Solicitors:
G Gleeson, ‎Office of Local Government (Respondent)
File Number(s): 1610204
Publication restriction: Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the information that been provided to the Tribunal on a confidential basis and to the record of that part of the proceedings conducted in the absence of the Applicant pursuant to section 107 of the Government Information (Public Access) Act 2009. That material is not to be released to either the Applicant or to the public.

reasons for decision

  1. In February 2016, the Applicant, Mr Curtin, applied to the Lord Howe Island Board (“the Board”) under the Government Information (Public Access) Act 2009 (“the GIPA Act”) requesting access to information held by the Board. In his access application Mr Curtin sought the following information:

All Board records relating to complaints, grievances, investigations, allegations and entries to the lease in perpetuity which relate to me, are about me, or involve my property, including all records of entry to leasehold land compliant with LHIB Procedure for Access to Leasehold Land s2(3).

  1. Mr Curtin explained that the scope of the request included:

records such as photographs and videotapes along with the documented approvals…

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Details
Case
[2017] NSWCATAD 86
Decision Date

CaseChat Overview and Summary

Curtin brought an application for internal review of a decision by the Lord Howe Island Board to refuse to release certain documents under the Government Information (Public Access) Act 2009 (GIPA). The Board had withheld the documents on the basis that they contained exempt personal information, and that the public interest did not outweigh the harm that would be caused by the release of that information. Curtin argued that the Board had erred in failing to release the documents, and that the public interest considerations required the information to be disclosed. The matter was heard and determined by the Information and Privacy Commissioner of New South Wales, who affirmed the Board's decision in part and set it aside in part. Curtin appealed the decision to the Land and Environment Court, seeking a review of the Commissioner's determination.

The central issue before the Court was whether the Board had correctly exercised its discretion under the GIPA Act in deciding to withhold certain information. Specifically, the Court was required to determine whether the Board had erred in finding that the personal information was exempt from disclosure, and whether the public interest considerations required the release of the withheld information. Curtin argued that the Board had failed to properly consider the public interest factors in favour of disclosure, and had placed too much weight on the potential harm to individuals whose personal information was contained in the documents.

In determining the matter, the Court found that the Board had erred in its decision to withhold the personal information contained in document 46. The Court held that there was insufficient evidence to support the Board's finding that the information was exempt from disclosure under the GIPA Act. The Court also found that the Board had failed to properly consider the public interest factors in favour of disclosure, and had not adequately weighed the potential harm to individuals against the public interest in disclosure. In relation to the cover page of document 28, the Court found that there was insufficient evidence to determine whether the information was exempt from disclosure, and remitted the matter back to the Board for redetermination. The Court held that the Board's decision to withhold the remaining information was incorrect, and that the public interest considerations required the release of that information.

The Court set aside the decision of the Information and Privacy Commissioner in part, and in its place made a decision that the withheld information should be released. The Court also affirmed the Commissioner's decision in relation to the personal information contained in document 46, and remitted the matter in relation to the cover page of document 28 back to the Board for redetermination by a specified date. The Court listed the matter for further case conference to consider any remaining issues.

Orders

Orders of the court

1. The decision under review is affirmed in regard to the personal information contained in the document identified as document 46.

2. The matter is remitted for redetermination in regard to the personal information contained in the cover page of the document identified as document 28. The redetermination is to be completed by 28 April 2017.

3. The decision under review is otherwise set aside. In its place the decision is made that the information that has been withheld is released.

4. The matter is listed for further case conference on 30 May 2017 at 10.30 am.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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