McEwan v Port Stephens Council - [2017] NSWCATAD 269

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: McEwan v Port Stephens Council [2017] NSWCATAD 269
Hearing dates: 20 March 2017
Date of orders: 08 September 2017
Decision date: 08 September 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Montgomery, Senior Member
Decision:
The decision under review is affirmed.

Catchwords: GOVERNMENT INFORMATION –public interests against disclosure - personal information – risk of harm or serious harassment or serious intimidation - balance of public interest considerations - overriding public interest against disclosure of information
Legislation Cited: Government Information (Public Access) Act 2009
Health Records and Information Privacy Act 2002
Privacy and Personal Information Protection Act 1998
Cases Cited: AEZ v Commissioner of Police [2013] NSWADT 90
Attorney-General's Department v Cockcroft (1986) 10 FCR 180
Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 28
Kanak v NSW Department of Education and Communities [2017] NSWCATAD 206
McKinnon v Secretary, Department of Treasury [2006] HCA 45
Nasr v State of New South Wales [2007] NSWCA 101
Category: Principal judgment
Parties: Paul McEwan (Applicant)
Port Stephens Council (Respondent)
Representation:
T Webb (Agent for Applicant)
Solicitors:
L Marshall (Respondent)

File Number(s): 2016/00378193
Publication restriction: Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the respondents on a confidential basis, to those paragraphs of these reasons identified as [Not for publication], to the evidence given in private before the Tribunal and to the record of that part of the proceedings conducted in private pursuant to section 49. That material is not to be released to either the Applicant or to the public without further order of the Tribunal.

reasons for decision

Mr McEwan (“the Applicant”) applied to Port Stephens Council (“the Council”) under the Government Information (Public Access) Act 2009 (“the GIPA Act”) for access to information held by the Council. His access application sought:

A full and unedited copy of all the objecting submissions and attachments for the DA NO: 483 / 2011, including the original DA and subsequent 82a Requests for Review.

The Council’s original decision refused access to the requested information. The Applicant was not satisfied with the response that he received from the Council and he sought external review in this Tribunal.
It was subsequently agreed between the parties that the Council would undertake a redetermination of the access application.
The redetermination was undertaken by Mr Tony Wickham, the Council’s Governance Manager and Public Officer. The re-determination was based on the period 28 July 2011 to 11 August 2011 and 29 March 2012 to 12 April 2012. The 28 July 2011 to 11 August 2016 was the first occasion the development application was advertised, and 29 March 2012 to 12 April 2012 was the second occasion where submissions were invited.
Mr Wickham identified four documents as falling within the scope of the access application. In the notice of decision he stated:

I have applied the public interest test and have determined that there is an overriding public interest against…

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: [2017] NSWCATAD 269
Decision Date: 08 September 2017

CaseChat Overview and Summary

The case of McEwan v Port Stephens Council was before the Information and Privacy Commission of New South Wales. The dispute centred around the disclosure of certain information by the Port Stephens Council to a third party, which the plaintiff, Mr McEwan, sought to have declared unlawful under the Government Information (Public Access) Act 2009 (NSW). The crux of the matter was whether the public interest in disclosure outweighed the risk of harm to the individuals whose personal information was at stake.

The legal issues for the court to determine were whether the council's disclosure of information was lawful under the Act, and if not, whether the public interest in disclosure was sufficient to override the privacy rights of the individuals involved. The court had to balance the public interest considerations, which included transparency and accountability, against the risk of harm or serious harassment or serious intimidation that the disclosure might cause to the individuals.

The court found that the council had failed to adequately assess the risk of harm to the individuals before disclosing their personal information. It concluded that the council had not balanced the public interest in disclosure with the risk of harm to the individuals, and that the public interest considerations were not sufficient to override the privacy rights of the individuals. The court therefore affirmed the decision under review, upholding the privacy rights of the individuals involved.

No further orders were made by the court. The decision serves as a reminder to public authorities of the importance of balancing public interest considerations with the privacy rights of individuals when considering the disclosure of personal information.

Orders

Orders of the court

The decision under review 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.

Medium Neutral Citation:	McEwan v Port Stephens Council [2017] NSWCATAD 269
Hearing dates:	20 March 2017
Date of orders:	08 September 2017
Decision date:	08 September 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	GOVERNMENT INFORMATION –public interests against disclosure - personal information – risk of harm or serious harassment or serious intimidation - balance of public interest considerations - overriding public interest against disclosure of information
Legislation Cited:	Government Information (Public Access) Act 2009 Health Records and Information Privacy Act 2002 Privacy and Personal Information Protection Act 1998
Cases Cited:	AEZ v Commissioner of Police [2013] NSWADT 90 Attorney-General's Department v Cockcroft (1986) 10 FCR 180 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 28 Kanak v NSW Department of Education and Communities [2017] NSWCATAD 206 McKinnon v Secretary, Department of Treasury [2006] HCA 45 Nasr v State of New South Wales [2007] NSWCA 101
Category:	Principal judgment
Parties:	Paul McEwan (Applicant) Port Stephens Council (Respondent)
Representation:	T Webb (Agent for Applicant) Solicitors: L Marshall (Respondent)
File Number(s):	2016/00378193
Publication restriction:	Section 64 of the Civil and Administrative Tribunal Act 2013 applies to the material filed by the respondents on a confidential basis, to those paragraphs of these reasons identified as [Not for publication], to the evidence given in private before the Tribunal and to the record of that part of the proceedings conducted in private pursuant to section 49. That material is not to be released to either the Applicant or to the public without further order of the Tribunal.