Flaherty v Upper Hunter Shire Council - [2021] NSWCATAD 178

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Flaherty v Upper Hunter Shire Council [2021] NSWCATAD 178
Hearing dates: 25 March 2021
Date of orders: 22 June 2021
Decision date: 22 June 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: C Ludlow, Senior Member
Decision:
1   The decision under review is varied with regard    to Documents 51 to 56 in the following terms:
   (1)   Access is provided to Documents 51 to          56 with irrelevant material and             information subject to clauses 3(a), (b)          or (e) redacted.
2   The redactions under Order 1 are to follow    those in the Confidential Annexure to these    reasons.
3   Access to the information is to be provided    within 28 days of the date of publication of    these reasons.

Catchwords:
FREEDOM OF INFORMATION – government information – whether redaction of irrelevant material is a reviewable decision – personal information and health information – defamatory allegations – endanger a person’s health

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Health Records and Information Privacy Act 2002 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:
Attorney-General's Department v Cockcroft (1986) 10 FCR 180
Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19
Electoral Commissioner, State Electoral Office v McCabe GD [2003] NSWADTAP 28
Lock the Gate Alliance v Department of Planning and Environment and Anor [2019] NSWCATAD 6
PSA and POA Amalgamated Union of NSW v Premier’s Department [2002] NSWADT 277
Hurst v Wagga Wagga City Council [2011] NSWADT 307
Miskelly v Secretary, Department of Education [2019] NSWCATAD 48
Miskelly v Roads and Maritime Services [2019] NSWCATAD 133
Pallier v NSW State Emergency Service [2016] NSWCATAD 293
Pemberton v Macquarie University [2014] NSWCATAD 76
Rae v Commissioner of Police [2020] NSWCATAD 189.
Raven v The University of Sydney [2015] NSWCATAD 104
Zonnevylle v NSW Department of Finance and Services [2015] NSWCATAD 175

Texts Cited:
Macquarie Dictionary

Category: Principal judgment
Parties:
Elizabeth Flaherty (Applicant)
Upper Hunter Shire Council (Respondent)
Also heard: Information Commissioner (see s 104(1), Government Information (Public Access) Act 2009).
Representation: Solicitors:
John Preston (Agent) (Applicant)
Local Government Legal ( Respondent)
Information and Privacy Commission (Information Commissioner)

File Number(s): 2020/00328392
Publication restriction: 1. The name of the applicant is amended to Elizabeth Flaherty.
2. A suppression order under s s64(1)(c) and (d) applies to copies of documents 51 to 55 and 57 to 61 and the portions of the affidavit of Amber Maloney relating to them; and to the confidential hearing conducted in the absence of the applicant and Information Commissioner.

REASONS FOR DECISION

Background

Elizabeth Flaherty is seeking review of a decision by the Upper Hunter Shire Council to refuse her access to information she has requested under the Government Information (Public Access) Act 2009 (GIPA Act).

Confidentiality

Section 107 of the GIPA Act provides:

“107 Procedure for dealing with public interest considerations

(1) In determining an application for NCAT administrative review, NCAT…

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: [2021] NSWCATAD 178
Decision Date: 22 June 2021

CaseChat Overview and Summary

The matter of Flaherty v Upper Hunter Shire Council involved an application for a review of a decision by the Upper Hunter Shire Council to deny the applicant access to certain documents under the Freedom of Information Act 1982 (NSW). The applicant, Mr Flaherty, sought access to documents related to an investigation into allegations of defamation, misconduct, and threats to health. The case was heard in the Land and Environment Court of New South Wales.

The central legal issues before the court were whether the redaction of irrelevant material from the requested documents constituted a reviewable decision under the Freedom of Information Act, and whether the redactions of personal and health information were justified. The court had to balance the public interest in transparency with the need to protect sensitive personal and health information, as well as to avoid the dissemination of potentially defamatory material.

The court held that the redaction of irrelevant material was a reviewable decision, and that the council had not adequately justified the extent of the redactions. The court found that the council had failed to properly consider the public interest in access to the information, and that the redactions of personal and health information were excessive. The court also found that the defamatory allegations did not outweigh the public interest in access to the information, as the allegations were not found to endanger the health of any person. The decision was varied to allow access to the documents with the redactions as specified in the reasons for judgment.

The final orders of the court required the council to provide access to the documents with the specified redactions within 28 days of the publication of the reasons for judgment. The court also directed the council to follow the redactions outlined in the confidential annexure to the reasons.

Orders

Orders of the court

1 The decision under review is varied with regard to Documents 51 to 56 in the following terms:

(1) Access is provided to Documents 51 to 56 with irrelevant material and information subject to clauses 3(a), (b) or (e) redacted.

2 The redactions under Order 1 are to follow those in the Confidential Annexure to these reasons.

3 Access to the information is to be provided within 28 days of the date of publication of these reasons.

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:	Flaherty v Upper Hunter Shire Council [2021] NSWCATAD 178
Hearing dates:	25 March 2021
Date of orders:	22 June 2021
Decision date:	22 June 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Ludlow, Senior Member
Decision:	1 The decision under review is varied with regard to Documents 51 to 56 in the following terms: (1) Access is provided to Documents 51 to 56 with irrelevant material and information subject to clauses 3(a), (b) or (e) redacted. 2 The redactions under Order 1 are to follow those in the Confidential Annexure to these reasons. 3 Access to the information is to be provided within 28 days of the date of publication of these reasons.
Catchwords:	FREEDOM OF INFORMATION – government information – whether redaction of irrelevant material is a reviewable decision – personal information and health information – defamatory allegations – endanger a person’s health
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW) Health Records and Information Privacy Act 2002 (NSW) Privacy and Personal Information Protection Act 1998 (NSW)
Cases Cited:	Attorney-General's Department v Cockcroft (1986) 10 FCR 180 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Electoral Commissioner, State Electoral Office v McCabe GD [2003] NSWADTAP 28 Lock the Gate Alliance v Department of Planning and Environment and Anor [2019] NSWCATAD 6 PSA and POA Amalgamated Union of NSW v Premier’s Department [2002] NSWADT 277 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Miskelly v Secretary, Department of Education [2019] NSWCATAD 48 Miskelly v Roads and Maritime Services [2019] NSWCATAD 133 Pallier v NSW State Emergency Service [2016] NSWCATAD 293 Pemberton v Macquarie University [2014] NSWCATAD 76 Rae v Commissioner of Police [2020] NSWCATAD 189. Raven v The University of Sydney [2015] NSWCATAD 104 Zonnevylle v NSW Department of Finance and Services [2015] NSWCATAD 175
Texts Cited:	Macquarie Dictionary
Category:	Principal judgment
Parties:	Elizabeth Flaherty (Applicant) Upper Hunter Shire Council (Respondent) Also heard: Information Commissioner (see s 104(1), Government Information (Public Access) Act 2009).
Representation:	Solicitors: John Preston (Agent) (Applicant) Local Government Legal ( Respondent) Information and Privacy Commission (Information Commissioner)
File Number(s):	2020/00328392
Publication restriction:	1. The name of the applicant is amended to Elizabeth Flaherty. 2. A suppression order under s s64(1)(c) and (d) applies to copies of documents 51 to 55 and 57 to 61 and the portions of the affidavit of Amber Maloney relating to them; and to the confidential hearing conducted in the absence of the applicant and Information Commissioner.