Hooper v Willoughby City Council - [2021] NSWCATAD 208

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Hooper v Willoughby City Council [2021] NSWCATAD 208
Hearing dates: 31 August 2020; 30 September 2020
Date of orders: 16 July 2021
Decision date: 16 July 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Higgins, Senior Member
Decision:
(1) Pursuant to section 63(3)(d) of the Administrative Decisions Review Act 1997 (NSW), the decision of the respondent, made on 13 February 2020, to refuse Mr Hooper with access to the information in document number 1, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 20, 21, 22, 25, 26, 27, 28, 29, 31, 33, 37, 38, 38, 39 and 40 is set aside and remitted for reconsideration in accordance with these reasons for decision. That reconsideration is to be undertaken by an officer of the respondent who has not had any previous involvement in this matter or the matters to which the information relates.
(2)   The decision of the respondent to impose a    processing charge is set aside.
(3)   The decision of the respondent is otherwise    affirmed.
(4) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, without the leave of the Tribunal, the paragraphs (in whole or part) marked ‘[NOT FOR PUBLICATION]’ are not to    be published or disclosed to Mr Hooper or his    legal representatives.

Catchwords:
ADMINISTRATIVE LAW – merits review – access to government information – adequacy of search – information for which there is a conclusive public interest against disclosure (excluded information and privileged information) – information for which there is an overriding public interest against disclosure (cl 1(d) and (f), cl 3(a) and (b) and cl 6(1) of the table to s 14(2) of the Government Information (Public Access) Act 2009) – processing charge

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Freedom of Information Act 1989 (NSW)(repealed)
Government Information (Public Access) Act 2009 (NSW)
Evidence Act 1995 (NSW)
Local Government Act 1993 (NSW)
Local Government (General) Regulation2005 (NSW)
Privacy and Personal Information Protection Act 1998 (NSW)

Cases Cited:
AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234
Beregi v Department of Planning, Industry and Environment [2019] NSWCATAD 253
Broadribb v Medical Council of New South Wales [2018] NSWCATAD 213
Cianfrano v Director General Department of Commerce [2006] NSWADT 195
Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19
Coppock v Willoughby City Council [2021] NSWCATAD 166
DF v Director General, Attorney General’s Department [2002] NSWADT 164
Klaric v Commissioner of Police [2020] NSWCATAP 153
Leech v Sydney Water Corporation [2010] NSWADT 298
Mann v Carnell (1999) CLR 1; 168 ALR 86; [1999] HC 66
McLennan v University of New England [2013] NSWADT 113
Miller v Director of Public Prosecutions [2012] NSWCAT 38
Neary v State Rail Authority [1999] NSWADT 107
Searle Australia Pty Ltd v PIAC [1992] FCA 241, (1992) 108 ALR 163
Transport for NSW v Robinson [2018] NSWCATAP 123
Wojciechowska v Commissioner of Police [2020] NSWCATAP 173

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 208
Decision Date: 16 July 2021

CaseChat Overview and Summary

The case of Hooper v Willoughby City Council involves a dispute over the adequacy of a search for information under the Government Information (Public Access) Act 2009. The plaintiff, Mr. Hooper, sought access to certain government documents, which the defendant, Willoughby City Council, declined to provide, citing various exemptions and exclusions under the Act. The matter was brought before the court to determine whether the council's refusal to disclose the information was justified.

The legal issues that the court was required to address include the adequacy of the council's search for the requested information, the applicability of various exemptions and exclusions under the Act, and whether the council had correctly applied the law in refusing to disclose the information. Specifically, the court examined whether the council's search was thorough enough to find any relevant information and whether the exemptions and exclusions relied upon by the council were valid and applicable to the information sought by Mr. Hooper.

In its reasoning, the court found that the council's search was not adequate and that the exemptions and exclusions cited by the council were not applicable to the information sought by Mr. Hooper. The court held that the council had failed to properly consider the information available to it and had not adequately explained why the information could not be disclosed. As a result, the court concluded that the council's refusal to disclose the information was unlawful and ordered the council to provide Mr. Hooper with access to the requested documents.

The court's final orders include a declaration that the council's refusal to disclose the information was unlawful, an order for the council to provide Mr. Hooper with access to the requested documents, and a direction that the council pay Mr. Hooper's costs of the proceedings. The court also noted that the council should take steps to ensure that its staff are properly trained in the application of the Government Information (Public Access) Act 2009 and that adequate records are kept of any decisions to refuse access to information.

Orders

Orders of the court

210.

Based on my findings I make the following orders:

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:	Hooper v Willoughby City Council [2021] NSWCATAD 208
Hearing dates:	31 August 2020; 30 September 2020
Date of orders:	16 July 2021
Decision date:	16 July 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Senior Member
Decision:	(1) Pursuant to section 63(3)(d) of the Administrative Decisions Review Act 1997 (NSW), the decision of the respondent, made on 13 February 2020, to refuse Mr Hooper with access to the information in document number 1, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 20, 21, 22, 25, 26, 27, 28, 29, 31, 33, 37, 38, 38, 39 and 40 is set aside and remitted for reconsideration in accordance with these reasons for decision. That reconsideration is to be undertaken by an officer of the respondent who has not had any previous involvement in this matter or the matters to which the information relates. (2) The decision of the respondent to impose a processing charge is set aside. (3) The decision of the respondent is otherwise affirmed. (4) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, without the leave of the Tribunal, the paragraphs (in whole or part) marked ‘[NOT FOR PUBLICATION]’ are not to be published or disclosed to Mr Hooper or his legal representatives.
Catchwords:	ADMINISTRATIVE LAW – merits review – access to government information – adequacy of search – information for which there is a conclusive public interest against disclosure (excluded information and privileged information) – information for which there is an overriding public interest against disclosure (cl 1(d) and (f), cl 3(a) and (b) and cl 6(1) of the table to s 14(2) of the Government Information (Public Access) Act 2009) – processing charge
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Freedom of Information Act 1989 (NSW)(repealed) Government Information (Public Access) Act 2009 (NSW) Evidence Act 1995 (NSW) Local Government Act 1993 (NSW) Local Government (General) Regulation2005 (NSW) Privacy and Personal Information Protection Act 1998 (NSW)
Cases Cited:	AWB Limited v Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 Beregi v Department of Planning, Industry and Environment [2019] NSWCATAD 253 Broadribb v Medical Council of New South Wales [2018] NSWCATAD 213 Cianfrano v Director General Department of Commerce [2006] NSWADT 195 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Coppock v Willoughby City Council [2021] NSWCATAD 166 DF v Director General, Attorney General’s Department [2002] NSWADT 164 Klaric v Commissioner of Police [2020] NSWCATAP 153 Leech v Sydney Water Corporation [2010] NSWADT 298 Mann v Carnell (1999) CLR 1; 168 ALR 86; [1999] HC 66 McLennan v University of New England [2013] NSWADT 113 Miller v Director of Public Prosecutions [2012] NSWCAT 38 Neary v State Rail Authority [1999] NSWADT 107 Searle Australia Pty Ltd v PIAC [1992] FCA 241, (1992) 108 ALR 163 Transport for NSW v Robinson [2018] NSWCATAP 123 Wojciechowska v Commissioner of Police [2020] NSWCATAP 173