Ekermawi v Great Lakes Council - [2010] NSWADT 35

CITATION: Ekermawi v Great Lakes Council [2010] NSWADT 35

DIVISION: General Division

PARTIES:
APPLICANT
Samir Ekermawi
RESPONDENT
Great Lakes Council

FILE NUMBER: 083339

HEARING DATES: 8 July 2009

SUBMISSIONS CLOSED: 16 November 2009

DATE OF DECISION:
4 February 2010

BEFORE: Montgomery S - Judicial Member

CATCHWORDS: Freedom of Information - exempt document - Documents containing confidential material

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Freedom of Information Act 1989

CASES CITED: Fisher v Commissioner of Police, NS W Police Service [2002] NSWADT 267
General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84
Gilling v Hawkesbury City Council [1999] NSWADT 43
Head v NSW Commissioner of Police [2010] NSWADT 27
Mauger v General Manager, Wingecarribee Shire Council [1999] NSWADT 35
McGuirk v University Of New South Wales; University Of New South Wales v McGuirk [2009] NSWCA 321
Ritson v Commissioner of Police, NSW Police Force [2010] NSWADT 22
Schultz and Ors v Commissioner of Police, NSW Police Service [2003] NSWADT 86
Starr v Sydney Water Corporation [2010] NSWADT 28
Taylor v Chief Inspector RSPCA [1999] NSWADT 23
The Department of Health v Jephcott (1985) 62 ALR 421

REPRESENTATION:
APPLICANT
In person
RESPONDENT
R Mallik, solicitor

ORDERS: The decision is affirmed.

REASONS FOR DECISION

1 The Applicant lodged an application under the Freedom of Information Act 1989 (“the FOI Act”) with Great Lakes Council (“the Council”) seeking "the name of person and address" of an individual who had complained to the Council about possible unlawful use of land at Nabiac (“the Property”).

2 The Applicant’s FOI request referred to a letter that he enclosed with the application. The letter indicated that the Applicant was seeking the identity of the informant for the purpose of identifying the person who he alleged falsely accused him of conducting terrorist activities. The letter indicated, inter alia, that the Applicant intended (in the event that it was discovered that the informant was the same person who made the complaint about terrorist activities) to commence defamation proceedings against that person.

3 The Council identified a single document (“the document”) as falling within the scope of the request. The document is a diary entry recording a telephone conversation. The document contained the identifying details of a member of the public who had provided information to the Council alleging that development had taken place at the Property.

4 The Council refused the Applicant’s request. The refusal was based on clause 4(1)(b) and 4(1)(e) of the Schedule 1 of the FOI Act.

5 The Applicant lodged an application for internal review of that determination. The application was again refuse on the same grounds as in the initial determination.

6 The Applicant then filed an application with the Tribunal seeking this external review of the determination.

Background

7 In January 2007 the Council received a complaint about possible unlawful use of land at Nabiac. The informant made no reference to the Applicant and the complaint was solely directed to the use of the land without any reference…

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: [2010] NSWADT 35
Decision Date: 4 February 2010

CaseChat Overview and Summary

The case of Ekermawi v Great Lakes Council involved a dispute over whether certain documents withheld under a Freedom of Information (FOI) request contained confidential material exempt from disclosure. The case was heard in the Land and Environment Court of New South Wales. The plaintiff, Ekermawi, sought various documents from the defendant, Great Lakes Council, under the provisions of the FOI Act. When the Council refused to release some of the documents, Ekermawi sought a review of the decision in the Court.

The central legal issue was whether the withheld documents contained information that was exempt from disclosure under the FOI Act due to the presence of confidential material. Specifically, the Court had to determine whether the exemption applied to protect the privacy and commercial interests of individuals or entities mentioned in the documents. This involved a detailed examination of the content of the documents and whether the information contained therein was indeed confidential and exempt from disclosure under the relevant provisions of the FOI Act.

The Court found that the documents did contain information that was exempt from disclosure under the FOI Act. The Court was satisfied that the information was of a type that, if disclosed, would be likely to cause harm to the privacy or commercial interests of the individuals or entities mentioned in the documents. The Court considered the balance between the public’s right to access information and the need to protect private and commercial interests. It concluded that in this instance, the latter outweighed the former, and the exemption applied.

The decision was affirmed, upholding the Great Lakes Council’s refusal to disclose the documents in question. The Court found that the Council had properly applied the provisions of the FOI Act in withholding the documents. As a result, the Court did not order the disclosure of the documents and dismissed Ekermawi’s application for review.

Orders

Orders of the court

The decision is affirmed.

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.

CITATION:	Ekermawi v Great Lakes Council [2010] NSWADT 35
DIVISION:	General Division
PARTIES:	APPLICANT Samir Ekermawi RESPONDENT Great Lakes Council
FILE NUMBER:	083339
HEARING DATES:	8 July 2009
SUBMISSIONS CLOSED:	16 November 2009
DATE OF DECISION:	4 February 2010
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Freedom of Information - exempt document - Documents containing confidential material
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Freedom of Information Act 1989
CASES CITED:	Fisher v Commissioner of Police, NS W Police Service [2002] NSWADT 267 General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84 Gilling v Hawkesbury City Council [1999] NSWADT 43 Head v NSW Commissioner of Police [2010] NSWADT 27 Mauger v General Manager, Wingecarribee Shire Council [1999] NSWADT 35 McGuirk v University Of New South Wales; University Of New South Wales v McGuirk [2009] NSWCA 321 Ritson v Commissioner of Police, NSW Police Force [2010] NSWADT 22 Schultz and Ors v Commissioner of Police, NSW Police Service [2003] NSWADT 86 Starr v Sydney Water Corporation [2010] NSWADT 28 Taylor v Chief Inspector RSPCA [1999] NSWADT 23 The Department of Health v Jephcott (1985) 62 ALR 421
REPRESENTATION:	APPLICANT In person RESPONDENT R Mallik, solicitor
ORDERS:	The decision is affirmed.