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McKinnon v Blacktown City Council

McKinnon v Blacktown City Council

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Case Copied 20 March 2012 45 min read

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Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: McKinnon v Blacktown City Council [2012] NSWADT 44
Hearing dates: 21 September 2011
Decision date: 20 March 2012
Jurisdiction: General Division
Before: P H Molony, Judicial Member
Decision:
1.Set aside the decision of the Agency and instead determine that within 30 days of the publication of these reasons the Agency release to the Applicant a copy of the report subject to deletions as indicated in these reasons.
2.Order under s 75(2) of the Administrative Decisions Tribunal Act 1997 that for a period 30 days from the publication of these reasons paragraphs 60 to 66, and 68, of these reasons not be disclosed to the Applicant, the Information Commissioner or the public.

Catchwords: Government Information (Public Access) - personal information- confidential information that facilitates the effective exercise of an agency's functions - breach of confidence - information provided to an agency in confidence - personal information - competitive commercial value
Legislation Cited: Administrative Decisions Tribunal Act 1997
Government Information (Public Access) Act 2009
Freedom of Information Act 1989
Local Government Act 1993
Protected Disclosures Act 1994
Cases Cited: Alexander v University of Sydney [2008] NSWADT 214
Attorney-General's Department v Cockcroft (1986) 10 FCR 180
Chief Executive Officer, State Rail Authority v Woods [GD) [2003] NSWADTAP 25
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
Department of Education & Training v Mullet [2002] NSWADTAP 13
Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286
Hurst v Wagga Wagga City Council [2011] NSWADT 307
McKinnon v Secretary, Department of Treasury [2006] HCA 45
Neary v State Rail Authority [1999] NSWADT 107
Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227
TW v TX [2005] NSWADT 262
XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2
Category: Principal judgment
Parties: Michael McKinnon (Applicant)
Blacktown City Council (Respondent)
Representation: M McKinnon (Applicant in person)
Sparke Helmore (Respondent)
Information Commissioner

File Number(s): 113164
Publication restriction: Order under s 75(2) of the Administrative Decisions Tribunal Act 1997 that for a period 30 days from the publication of these reasons paragraphs 60 to 66, and 68, of these reasons not be disclosed to the Applicant, the Information Commissioner or the public.

REASONS FOR DECISION

Background

[GENERAL DIVISION (P H Molony, Judicial Member)] On 20 May 2011 the Mr McKinnon made an application under the Government Information (Public Access) Act 2009 (the GIPA Act) to the Blacktown City Council (the Agency) for access to the following information:

"... the report of the alleged irregularities of Blacktown City Council's Chinese interpreter services"

Mr McKinnon is a journalist who sought access to the report in his professional capacity.

The report is that of an external consultant, SINC Solutions, which was engaged by the Agency to conduct an investigation into and report on, allegations of maladministration and misconduct by an employee of the Agency (the report) in the purchase of Chinese interpreter services for the Agency. The…

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: [2012] NSWADT 44
Decision Date: 20 March 2012

CaseChat Overview and Summary

McKinnon applied to the Information Commissioner for access to a report prepared by an agency of the Blacktown City Council. The Agency refused McKinnon's application on the basis that the report contained information that was exempt from disclosure because it was personal information and confidential information that facilitated the effective exercise of the agency's functions. McKinnon sought judicial review of the Agency's decision. McKinnon submitted that the Agency was required to disclose the report, with redactions of only the exempt information. The Agency responded that the report contained information which was exempt from disclosure because it was personal information, confidential information and had competitive commercial value.

The court considered whether the Agency's decision was lawful. The court found that the Agency was required to disclose McKinnon the report, subject to deletions of only the exempt information. The Agency was required to disclose the report because the report was not exempt from disclosure as confidential information that facilitated the effective exercise of the agency's functions. The court found that the Agency was not required to disclose McKinnon the report, subject to deletions of only the exempt information, because the report contained personal information. However, the court found that the Agency was required to disclose McKinnon the report, subject to deletions of the exempt information, because the report did not contain confidential information that facilitated the effective exercise of the agency's functions. The court found that the report did not contain confidential information because the information contained in the report was already publicly available. The court also found that the report did not contain information that had competitive commercial value. The court found that the Agency was required to disclose McKinnon the report, subject to deletions of only the exempt information.

The court set aside the decision of the Agency and instead determined that within 30 days of the publication of the reasons the Agency release to McKinnon a copy of the report, subject to deletions of only the exempt information. The court ordered that for a period of 30 days from the publication of the reasons certain paragraphs of the reasons not be disclosed to McKinnon, the Information Commissioner or the public.

Orders

Orders of the court

1.Set aside the decision of the Agency and instead determine that within 30 days of the publication of these reasons the Agency release to the Applicant a copy of the report subject to deletions as indicated in these reasons.

2.Order under s 75(2) of the Administrative Decisions Tribunal Act 1997 that for a period 30 days from the publication of these reasons paragraphs 60 to 66, and 68, of these reasons not be disclosed to the Applicant, the Information Commissioner or the public.

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:	McKinnon v Blacktown City Council [2012] NSWADT 44
Hearing dates:	21 September 2011
Decision date:	20 March 2012
Jurisdiction:	General Division
Before:	P H Molony, Judicial Member
Decision:	1.Set aside the decision of the Agency and instead determine that within 30 days of the publication of these reasons the Agency release to the Applicant a copy of the report subject to deletions as indicated in these reasons. 2.Order under s 75(2) of the Administrative Decisions Tribunal Act 1997 that for a period 30 days from the publication of these reasons paragraphs 60 to 66, and 68, of these reasons not be disclosed to the Applicant, the Information Commissioner or the public.
Catchwords:	Government Information (Public Access) - personal information- confidential information that facilitates the effective exercise of an agency's functions - breach of confidence - information provided to an agency in confidence - personal information - competitive commercial value
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Government Information (Public Access) Act 2009 Freedom of Information Act 1989 Local Government Act 1993 Protected Disclosures Act 1994
Cases Cited:	Alexander v University of Sydney [2008] NSWADT 214 Attorney-General's Department v Cockcroft (1986) 10 FCR 180 Chief Executive Officer, State Rail Authority v Woods [GD) [2003] NSWADTAP 25 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Department of Education & Training v Mullet [2002] NSWADTAP 13 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Hurst v Wagga Wagga City Council [2011] NSWADT 307 McKinnon v Secretary, Department of Treasury [2006] HCA 45 Neary v State Rail Authority [1999] NSWADT 107 Stewart and Department of Transport [1993] QICmr 6; (1993) 1 QAR 227 TW v TX [2005] NSWADT 262 XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2
Category:	Principal judgment
Parties:	Michael McKinnon (Applicant) Blacktown City Council (Respondent)
Representation:	M McKinnon (Applicant in person) Sparke Helmore (Respondent) Information Commissioner
File Number(s):	113164
Publication restriction:	Order under s 75(2) of the Administrative Decisions Tribunal Act 1997 that for a period 30 days from the publication of these reasons paragraphs 60 to 66, and 68, of these reasons not be disclosed to the Applicant, the Information Commissioner or the public.