Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: McEwan v Port Stephens Council [2021] NSWCATAD 110 Hearing dates: 1 February 2021 Date of orders: 30 April 2021 Decision date: 30 April 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: M Gracie, Senior Member Decision: 1. The Decision of the Council dated 15 January 2020 is varied to provide that the documents identified at Items 1, 2 and 3-102 of the Schedule to the Decision are to be released to the applicant without redactions, within 28 days of the publication of these reasons.
2. Otherwise, affirm the Decision of the Council dated 15 January 2020, so that Order 1 above does not apply to those redactions in the Documents at Items 1, 2 and 3-102 of the Schedule to the Decision relating to information determined by Council to be outside of the scope of the applicant's amended Access Application.
Catchwords: ADMINISTRATIVE REVIEW. Government Information (Public Access) – scope of access application - secondary employment register -pecuniary interests register - public interest considerations in favour of disclosure – public interest considerations against disclosure – open access information - personal information - secrecy provisions
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Government Information (Public Access) Act 2009 (NSW)
Government Information (Public Access) Regulation 2009 (NSW)
Local Government Act 1993 (NSW)
Cases Cited: Anderson v Tweed Shire Council [2017] NSWCATAD 61
CGU Workers Compensation (NSW) Ltd v Department of Planning and Environment [2018] NSWCATAD 169
Chetcuti v University of Sydney [2020] NSWCATAD 164
Donnellan v Ku-ring-gai Council [2013] NSWADT 115
DTB v Commissioner of Police, NSW Police Force [2019] NSWCATAD 114
Fisher v Commissioner of Police, NSW Police Force [2019] NSWCATAD 205
Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34
Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286
Fraser v SafeWork NSW [2020] NSWCATAP 92
Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46
Hurst v Wagga Wagga City Council [2011] NSWADT 307
Jackson v University of New South Wales [2019] NSWCATAD 224
JY v Commissioner for Police, NSW Police [2008] NSWADT 306
Leech v Sydney Water Corporation [2010] NSWADT 298
Mannix v Department of Education and Communities [2014] NSWCATAD 35
Meldru v Wollondilly Shire Council [2017] NSWCATAD 292
Miskelly v Roads and Maritime Services [2019] NSWCATAD 133
McKinnon v Secretary, Department of Treasury [2006] HCA 46
Mookhey v Department of Finance, Services and Innovation [2018] NSWCATAD 128
Pollington v Commissioner of Police, NSW Police Force [2019] NSWCATAD 1
Rice Marketing Board for the State of NSW v Forbidden Foods Pty Ltd [2020] NSWCATAP 183
Shoebridge v Office of Environment and Heritage [2018] NSWCATAP 144
Taylor v Destination NSW [2017] NSWCATAD 272
Wollondilly Shire Council [2017] NSWCATAD 292
YG and GG v Minister for Community Services [2002] NSWCA 247
Texts Cited: Nil
Category: Principal judgment Parties: Paul McEwan (Applicant)
Port Stephens Council (Respondent)Representation: Counsel:
B Tronson with M Cobb-Clarke…
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- Case
- [2021] NSWCATAD 110
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the public interest considerations listed in the Table of section 14 of the GIPA Act could reasonably be expected to constitute a contravention of secrecy provisions if disclosed, and whether the Information Commissioner's guidelines could be used to supplement the listed considerations. The court had to balance the applicant's right to access information against the Council's duty to protect personal and sensitive information.
The NCAT held that the public interest considerations against disclosure, as outlined in the GIPA Act, were sufficient to justify withholding certain details in the secondary employment and pecuniary interests registers. The court found that the Council had adequately demonstrated that disclosure could reasonably be expected to contravene secrecy provisions, thereby justifying the withholding of specific information. The Tribunal also noted that the Information Commissioner's guidelines could assist agencies in understanding public interest considerations but could not expand the list of considerations in the Act. Ultimately, the NCAT ruled in favour of the Council, affirming the decision to redact certain information to protect privacy and security interests.
The NCAT ordered that the Decision of the Council dated 15 January 2020 be varied to release certain documents to the applicant without redactions, while affirming the Council's decision to withhold other information. The Tribunal directed that the specified documents be released within 28 days of the publication of the reasons, ensuring a balance between the applicant's right to access information and the Council's obligations to protect sensitive data.
Orders
Orders of the court
1. The Decision of the Council dated 15 January 2020 is varied to provide that the documents identified at Items 1, 2 and 3-102 of the Schedule to the Decision are to be released to the applicant without redactions, within 28 days of the publication of these reasons.
2. Otherwise, affirm the Decision of the Council dated 15 January 2020, so that Order 1 above does not apply to those redactions in the Documents at Items 1, 2 and 3-102 of the Schedule to the Decision relating to information determined by Council to be outside of the scope of the applicant's amended Access Application.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Public interest considerations against disclosure It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section. In the present proceedings, in accordance with s 14 (2), the matters relied upon by the Council in the s 14 Table to be taken into account as "public interest considerations" against the disclosure of government information are set out in clause 3 (a) and (b) and clause 6 which relevantly provide: Individual rights, judicial processes and natural justice Secrecy provisions There is a public interest consideration against disclosure of information if disclosure of the information by any person could (disregarding the operation of this Act) reasonably be expected to constitute a contravention of a provision of any other Act or statutory rule (of this or another State or of the Commonwealth) that prohibits the disclosure of information, whether or not the prohibition is subject to specified qualifications or exceptions. The public interest consideration under this clause extends to consideration of the policy that underlies the prohibition against disclosure. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. The onus is on the agency "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance" - Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [41]; also Leech v Sydney Water Corporation [2010] NSWADT 298 at [25]. Section 14 (3) provides for the Information Commissioner to issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies. As discussed later, the Information Commissioner has issued several statutory guidelines relevant to the issues in these proceedings. Section 105 of the GIPA Act places the onus on the respondent agency to establish that its decision was justified. The respondent agency is not limited to defending or justifying its decision on the same grounds as the original decision-maker: Fisher v Goulburn Mulwaree Council [2019] NSWCATAD 34 at [10]; Meldru v Wollondilly Shire Council [2017] NSWCATAD 292 at [7].