Newton v Newcastle City Council - [2022] NSWCATAD 18

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Newton v Newcastle City Council [2022] NSWCATAD 18
Hearing dates: On the papers
Date of orders: 14 January 2022
Decision date: 14 January 2022
Jurisdiction: Administrative and Equal Opportunity Division
Before: P French, Senior Member
Decision:
(1) Pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013, a hearing of the application is dispensed with.
(2) The agency’s decision to refuse to release to the applicant the name of the complainant is affirmed.
(3) No order as to costs

Catchwords:
ADMINISTRATIVE LAW – administrative review of a reviewable decision – decision to refuse access to information – redaction of name of person who made a ‘customer request’ (complaint) to a local authority – whether public interest considerations against disclosure outweigh public interest considerations in favour of disclosure – prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions (Table to s 14 clause 1(d)) – prejudice the effective exercise by an agency of the agency’s functions (Table to s 14 clause 1(f)) – reveal an individual’s personal information (Table to s 14 consideration 3(a))
COSTS – whether there are special circumstances that justify an award of costs

Legislation Cited:
Administrative Decisions Review Act 1997
Environmental Planning and Assessment Act 1979
Government Information (Public Access) Act 2009
Local Government Act 1993

Cases Cited:
Ansoul v City of Sydney [2017] NSWCATAD 65
Arian n Nguyen [2001] NSWCA 5
Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19
Director of Public Prosecutions v Smith [1991] VR 63
Fahey v NSW Office of Liquor, Gaming and Racing [2012] NSWADT 181
Flack v Commissioner of Police, NSW Police [2011] NSWADT 286
Hurst v Wagga City Council [2011] NSWADT 307
JY v Commissioner for Police (2008) NSWADT 306
Leech v Sydney Water Corporation [2010] NSWADT 298
Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254
Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41
Re Attorney-General’s Department and Australian Iron and Steel Pty Limited v Peter Cockcroft G260 of 1985 Administrative Law [1986] FCA 35
Roberts v Chan & Naylor Parramatta Pty Ltd aft Chan & Naylor Parramatta Trust [2018] NSWCATAP 240
Rock v Legal Aid NSW [2021] NSWCATAD 308
Transport for NSW v Searle [2018] NSWCATAP 93
Williams v Department Industry and Investment [2012] NSWADT 192

Texts Cited:
Nil

Category: Principal judgment
Parties: John Newton (Applicant)
Newcastle City Council (Respondent)
Representation: John Newton – self-represented
Sam Bright, solicitor, Respondent

File Number(s): 2021/00075334
Publication restriction: Nil

REASONS FOR DECISION

Introduction

This is an application by John Newton (the applicant) under section 55 of the Administrative Decisions Review Act 1997 (ADR Act) for an administrative review of a decision made by the delegate of Newcastle City Council (the agency) on 10 September 2021 under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) to refuse his access request for a non-redacted copy…

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: [2022] NSWCATAD 18
Decision Date: 14 January 2022

CaseChat Overview and Summary

The applicant in this case sought access to the name and contact information of a person who had made a complaint to the respondent, Newcastle City Council. This information was sought under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The respondent refused to disclose the requested information on the basis that there was an overriding public interest against disclosure. The applicant sought judicial review of that decision. The central legal issue before the court was whether the respondent was correct in refusing to disclose the complainant's name and contact information on the basis that there was an overriding public interest against disclosure. The court considered whether the public interest considerations against disclosure outweighed those in favour of disclosure, and whether the respondent's decision to redact the complainant's name was justified.

The court found that the respondent's decision to redact the complainant's name and contact information was justified, as the public interest considerations against disclosure outweighed those in favour. Specifically, the court found that disclosure of the complainant's contact information could prejudice the supply of confidential information that facilitates the effective exercise of the respondent's functions, and could prejudice the effective exercise by the respondent of its functions. The court also found that disclosure of the complainant's personal information was not in the public interest. The court was satisfied that the respondent's decision to refuse access to the complainant's name and contact information was justified, and affirmed the respondent's decision. The court found that there were no special circumstances that would justify an award of costs.

Orders

Orders of the court

(1) Pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013, a hearing of the application is dispensed with.

(2) The agency’s decision to refuse to release to the applicant the name of the complainant is affirmed.

(3) No order as to costs

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

Separately, I am satisfied that the Agency’s decision that the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure is justified regarding the contact details. The agency accepted the Information Commissioner’s recommendation to reconsider its original decision and to make a new decision pursuant to section 93(2) of the GIPA Act. By Notice of Decision issued to the applicant on 10 September 2021 the delegate made a new decision in relation to his amended access application refusing to provide him with access to the complainant’s name and contact information pursuant to section 58(1)(d) of the GIPA Act on the basis that there was an overriding public interest against such disclosure (the new decision). It is this decision that is now the subject of this administrative review. The relevant contents of that decision for the purpose of this administrative review are set out following: In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:(a) authorising an encouraging the proactive release of government information by agencies, and(b) by giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. This object is amplified with a statutory command, contained in section 3(2) which provides: It is the intention of Parliament –(a) that this Act be interpreted and applied so as to further the object of this Act, and(b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest possible cost, access to government information The object of the GIPA Act is operationalized by various ‘machinery’ provisions of that Act. Section 5 establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Section 9(1) provides that applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure. Section 11 provides that the GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the “overriding secrecy laws” set out in Schedule 1, in relation to which it is conclusively presumed that there is an overriding public interest against disclosure of the information. Section 12 of the Act provides that there is a general public interest in favour of the disclosure of government information that is not covered by overriding secrecy laws. Section 12(2) provides that the categories of public interest considerations in favour of disclosure are not limited, but include, relevantly: (a) disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance government accountability or contribute to positive and informed debate on issues of public importance; (b) disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public; (c) disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds: (d) the information is personal information of the person to whom it is to be disclosed; and (e) disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. Section 13 contains a public interest test. It provides that there is an “overriding public interest against disclosure” of government information for the purposes of the GIPA Act “if (and only if)” there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. Section 14(1) of the Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any government information described in Schedule 1. Section 14(2) provides that the public interest considerations set out in the Table to section 14 are the only other public interest considerations against disclosure that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. The Table sets out 7 categories of public interest considerations against disclosure and 35 sub-categories. As set out in the agency’s notice of decision, the public interest considerations at issue in this review are found in Table 14 clauses 1(d), 1(f), and 3(a), which provide respectively:

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Newton v Newcastle City Council [2022] NSWCATAD 18
Hearing dates:	On the papers
Date of orders:	14 January 2022
Decision date:	14 January 2022
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P French, Senior Member
Decision:	(1) Pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013, a hearing of the application is dispensed with. (2) The agency’s decision to refuse to release to the applicant the name of the complainant is affirmed. (3) No order as to costs
Catchwords:	ADMINISTRATIVE LAW – administrative review of a reviewable decision – decision to refuse access to information – redaction of name of person who made a ‘customer request’ (complaint) to a local authority – whether public interest considerations against disclosure outweigh public interest considerations in favour of disclosure – prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions (Table to s 14 clause 1(d)) – prejudice the effective exercise by an agency of the agency’s functions (Table to s 14 clause 1(f)) – reveal an individual’s personal information (Table to s 14 consideration 3(a)) COSTS – whether there are special circumstances that justify an award of costs
Legislation Cited:	Administrative Decisions Review Act 1997 Environmental Planning and Assessment Act 1979 Government Information (Public Access) Act 2009 Local Government Act 1993
Cases Cited:	Ansoul v City of Sydney [2017] NSWCATAD 65 Arian n Nguyen [2001] NSWCA 5 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Director of Public Prosecutions v Smith [1991] VR 63 Fahey v NSW Office of Liquor, Gaming and Racing [2012] NSWADT 181 Flack v Commissioner of Police, NSW Police [2011] NSWADT 286 Hurst v Wagga City Council [2011] NSWADT 307 JY v Commissioner for Police (2008) NSWADT 306 Leech v Sydney Water Corporation [2010] NSWADT 298 Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 41 Re Attorney-General’s Department and Australian Iron and Steel Pty Limited v Peter Cockcroft G260 of 1985 Administrative Law [1986] FCA 35 Roberts v Chan & Naylor Parramatta Pty Ltd aft Chan & Naylor Parramatta Trust [2018] NSWCATAP 240 Rock v Legal Aid NSW [2021] NSWCATAD 308 Transport for NSW v Searle [2018] NSWCATAP 93 Williams v Department Industry and Investment [2012] NSWADT 192
Texts Cited:	Nil
Category:	Principal judgment
Parties:	John Newton (Applicant) Newcastle City Council (Respondent)
Representation:	John Newton – self-represented Sam Bright, solicitor, Respondent
File Number(s):	2021/00075334
Publication restriction:	Nil