Donnellan v Ku-ring-gai Council - [2013] NSWADT 115

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Donnellan v Ku-ring-gai Council [2013] NSWADT 115
Hearing dates: On the papers
Decision date: 27 May 2013
Jurisdiction: General Division
Before: S Higgins, Deputy President
Decision:
1. Subject to the following additional deletions from the information in the emails, the subject of this application, the decision of the respondent is affirmed:
(a) deletion of the information that is an email address of a person other than an officer or representatives of the respondent;
(b) deletion of the information in the body of the emails at tab 21, 22, 24 and 25 that were sent on 23 August 2011 at 7:47, 8:06, 8:22 and 10:06 am;
(c) deletion of the information in the body of the email at tab 215, sent at 7:43 pm.
2. Pursuant to subs 75(2) of the Administrative Decisions Tribunal Act 1997, for 30 days after the publication of this decision, the material deleted after the words 'Not to be published' in paragraphs 44, 55, 62 and 73 of these reasons for decision are not to be disclosed to applicant, Mr Donnellan, the applicant's legal representative or the public.

Catchwords: Government information - public access - whether information in response to a development application is personal information - where public interest lies on balance
Legislation Cited: Administrative Decisions Tribunal 1997
Freedom of information Act 1989 (NSW)(repealed)
Freedom of Information Act 1982 (Cth)
Government Information (Public Access) Act 2009
Government Information (Public Access) Regulation 2009
Local Government Act 1993
Cases Cited: McKinnon v Secretary, Department of Treasury [2006] HCA 45, at [61] and Attorney-General's Department v Cockcroft (1986) 10 FCR180
Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55
Staldone Corporation Pty Ltd v Ku-ring-gai Council [2012] NSWLEC 1035
Staldone Corporation Pty Ltd v Ku-ring-gai Council [2012] NSWLEC 1055
Category: Principal judgment
Parties: Steve Donnellan (Applicant in 123199)
Graeme Gurney (Applicant in file 123258)
Namoi Dougall (Applicant in file 123259)
Margot Coleman (Applicant in file 123263)
Ku-ring-gai Council (Respondent)
Representation: Adam Stack & Co (for S Donnellan)
G Gurney (Applicant in person)
N Dougall (Applicant in person)
M Coleman (Applicant in person)
Norton Rose (Respondent)

File Number(s): 123199, 123258, 123259, 123263
Publication restriction: 75(2) of the Administrative Decisions Tribunal Act 1997 applies for 30 days after the publication of this decision

REASONS FOR DECISION

Introduction

On 18 July 2012, Mr Donnellan (the access applicant) lodged his application seeking review of the decision of Ku-ring-gai Council (the respondent) in regard to his application for access to specified government information. Mr Donnellan made his application under the Government Information (Public Access) Act 2009 (GIPA Act). His access application was in the following terms:

'All emails between 1 July 2011 until 16 April 2012 to and from either Graham Gurney and Namoi Dougall, to and from any Ku-ring-gai councillor or staff member.

All emails between 1 July 2011 until 16 April 2012 to and from either Jonathan Coleman or Margo Coleman (nee Fitzpatrick), to and from any…

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 115
Decision Date: 27 May 2013

CaseChat Overview and Summary

Donnellan v Ku-ring-gai Council was a case before the Administrative Appeals Tribunal, where the applicant sought review of a decision made by the Ku-ring-gai Council. The dispute centred on the public release of information that the council had provided in response to a development application made by the applicant. Specifically, the applicant argued that the council had improperly withheld personal information, which should have been disclosed to the public in accordance with the Government Information (Public Access) Act 2009 (NSW).

The central legal issues before the tribunal were whether certain information contained in the emails exchanged between the council and the applicant's legal representatives constituted personal information under the Act, and whether the public interest in disclosing this information outweighed the privacy interests of the individuals involved. The tribunal had to consider the definition of personal information, the scope of public access to government information, and the balancing of privacy and public interest considerations.

The tribunal found that the information in question did not constitute personal information under the Act because it did not identify an individual and did not relate to an individual's affairs. However, the tribunal also found that some of the information should be redacted because it contained personal details of individuals who were not party to the proceedings. The tribunal held that the public interest in transparency and accountability in local government decision-making outweighed the privacy interests of the individuals involved. The tribunal affirmed the council's decision, subject to the deletion of certain information from the emails.

In addition to affirming the council's decision, the tribunal ordered that certain information in the emails be redacted and not disclosed for a period of 30 days after the publication of the decision. The tribunal also ordered that some information be withheld from the applicant, the applicant's legal representative, and the public for the same period of time. These orders were made to balance the competing interests of transparency and privacy.

Orders

Orders of the court

1. Subject to the following additional deletions from the information in the emails, the subject of this application, the decision of the respondent is affirmed:

(a) deletion of the information that is an email address of a person other than an officer or representatives of the respondent;

(b) deletion of the information in the body of the emails at tab 21, 22, 24 and 25 that were sent on 23 August 2011 at 7:47, 8:06, 8:22 and 10:06 am;

2. Pursuant to subs 75(2) of the Administrative Decisions Tribunal Act 1997, for 30 days after the publication of this decision, the material deleted after the words 'Not to be published' in paragraphs 44, 55, 62 and 73 of these reasons for decision are not to be disclosed to applicant, Mr Donnellan, the applicant's legal representative or the public.

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:	Donnellan v Ku-ring-gai Council [2013] NSWADT 115
Hearing dates:	On the papers
Decision date:	27 May 2013
Jurisdiction:	General Division
Before:	S Higgins, Deputy President
Decision:	1. Subject to the following additional deletions from the information in the emails, the subject of this application, the decision of the respondent is affirmed: (a) deletion of the information that is an email address of a person other than an officer or representatives of the respondent; (b) deletion of the information in the body of the emails at tab 21, 22, 24 and 25 that were sent on 23 August 2011 at 7:47, 8:06, 8:22 and 10:06 am; (c) deletion of the information in the body of the email at tab 215, sent at 7:43 pm. 2. Pursuant to subs 75(2) of the Administrative Decisions Tribunal Act 1997, for 30 days after the publication of this decision, the material deleted after the words 'Not to be published' in paragraphs 44, 55, 62 and 73 of these reasons for decision are not to be disclosed to applicant, Mr Donnellan, the applicant's legal representative or the public.
Catchwords:	Government information - public access - whether information in response to a development application is personal information - where public interest lies on balance
Legislation Cited:	Administrative Decisions Tribunal 1997 Freedom of information Act 1989 (NSW)(repealed) Freedom of Information Act 1982 (Cth) Government Information (Public Access) Act 2009 Government Information (Public Access) Regulation 2009 Local Government Act 1993
Cases Cited:	McKinnon v Secretary, Department of Treasury [2006] HCA 45, at [61] and Attorney-General's Department v Cockcroft (1986) 10 FCR180 Retain Beacon Hill High School Committee Inc v NSW Treasury [2007] NSWADT 55 Staldone Corporation Pty Ltd v Ku-ring-gai Council [2012] NSWLEC 1035 Staldone Corporation Pty Ltd v Ku-ring-gai Council [2012] NSWLEC 1055
Category:	Principal judgment
Parties:	Steve Donnellan (Applicant in 123199) Graeme Gurney (Applicant in file 123258) Namoi Dougall (Applicant in file 123259) Margot Coleman (Applicant in file 123263) Ku-ring-gai Council (Respondent)
Representation:	Adam Stack & Co (for S Donnellan) G Gurney (Applicant in person) N Dougall (Applicant in person) M Coleman (Applicant in person) Norton Rose (Respondent)
File Number(s):	123199, 123258, 123259, 123263
Publication restriction:	75(2) of the Administrative Decisions Tribunal Act 1997 applies for 30 days after the publication of this decision