Port Stephens Council v Webb

[2017] NSWCATAD 341

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Port Stephens Council v Webb [2017] NSWCATAD 341
Hearing dates:	19 July 2017
Date of orders:	22 November 2017
Decision date:	22 November 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member
Decision:	(1) Application is dismissed.
Catchwords:	ADMINISTRATIVE LAW – Government information – Application for restraint order – Where agency determined it did not hold information sought by applicant in four applications made in previous two years – Where three of those applications the subject of Tribunal review - Whether access applications lacked merit – Whether discretionary factors favoured making of restraint order – Whether proportion of Council’s resources taken up by access applicant was a relevant discretionary factor – Whether alleged conduct of applicant in writing voluminous correspondence to Council and making defamatory statements was a relevant factor
Legislation Cited:	Government Information (Public Access) Act 2009 (NSW)
Cases Cited:	Palerang Council, Queanbeyan City Council & Goulburn Mulwaree Council v Powell [2015] NSWCATAD 44 Pittwater Council v Walker [2015] NSWCATAD 34
Texts Cited:	New South Wales Ombudsman, ‘Opening Up Government – Review of the Freedom of Information Act 1989,’ a Special Report to Parliament under s 31 of the Ombudsman Act 1974, 5 February 2009
Category:	Principal judgment
Parties:	Port Stephens Council (Applicant) Telina Webb (Respondent)
Representation:	Solicitors: Local Government Legal (Applicant) In Person (Respondent)
File Number(s):	2017/00153702

REASONS FOR DECISION

1. This was an application under s 110 of the Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”) for an order restraining Ms Webb from making an access application without first obtaining the Tribunal’s approval.

2. I have found that the criteria for the making of the order are satisfied. However, I have declined to make the order, in the exercise of my discretion.

Application for restraint order

3. Port Stephens Council (“the Council”) applied for a restraint order under s 110 of the GIPA Act. It claims that four access applications made to it by Ms Webb in the past two years lack merit.

4. Section 110 of the GIPA Act provides:

“110 Orders to restrain making of unmeritorious access applications

(1) NCAT may order that a person is not permitted to make an access application without first obtaining the approval of NCAT if NCAT is satisfied that the person has made at least 3 access applications (to one or more agencies) in the previous 2 years that lack merit. Such an order is a restraint order.

(2) An access application is to be regarded as lacking merit if:

(a) the agency decided the application by refusing to deal with the application in its entirety, or

(b) the agency decided the application by deciding that none of the information applied for is held by the agency, or

(c) the access applicant’s entitlement to access lapsed without that access being provided (including as a result of failure to pay any processing charge payable).

(3) A restraint order may be made to apply to all access applications made by the person the subject of the order or may be limited by reference to particular kinds of information or particular agencies.

(4) A person who is subject to a restraint order cannot apply to NCAT for approval to the making of an access application by the person without first serving notice of the application for approval on the agency concerned and the Information Commissioner.

(5) An application for a restraint order against a person may be made by an agency that receives an access application from the person (whether or not the agency has decided the application) or by the Minister or the Information Commissioner.

(6) NCAT may order that a person who is the subject of a restraint order is not permitted to apply to NCAT for approval to make an access application if NCAT is satisfied that the person has repeatedly made applications for approval that are lacking in substance.

(7) While a restraint order is in force against a person, any application for government information made to an agency in contravention of the order is not a valid access application.”

5. Ms Webb’s position is that the application for a restraint order is a waste of the Tribunal’s time and resources and that it should be dismissed.

Background

6. In late 2009, Ms Webb’s husband approached the Council to discuss the installation of a privacy screen within the perimeter of the property owned by him and Ms Webb (“the Property”). According to Ms Webb, the Council told her husband that this was not something that the Council was interested in. Ms Webb and her husband proceeded to have erected a privacy screen at the Property without applying for development approval.

7. In April 2011, a neighbour lodged a complaint with the Council about the privacy screen when it was 80% complete. Ms Webb’s husband then lodged a development application, apparently on the Council’s advice, for the remaining portion of the privacy screen. That application was rejected.

8. Ms Webb and her husband then lodged a development application with the Council for all of the works. That application was also refused.

9. In 2012, the Council issued an order for partial demolition of the privacy screen, then later in the year issued an order for full demolition of the privacy screen.

10. The Council and Ms Webb were parties to proceedings in the Land and Environment Court concerning the Property.

11. Ms Webb sold the Property in 2013.

12. Ms Webb has lodged a number of applications to the Council under the GIPA Act since 2011, mostly relating to the Property.

Does the Tribunal have jurisdiction to make a restraint order in this case?

13. Before determining whether to make a restraint order, the Tribunal must be satisfied that Ms Webb has made at least three access applications in the previous two years that lack merit (GIPA Act, s 110(1)). In Pittwater Council v Walker [2015] NSWCATAD 34 at [11], Senior Member McAteer said of an application under s 110 of the GIPA Act:

“In my view there are three necessary gateways through which such an application to the Tribunal must pass. First, there must be a history of applications to the agency by the relevant individual under the provisions of the GIPA Act. Then it must be determined by the relevant agency that in respect of a number of those applications, the documents are not held by the agency (in accordance with section 58 (1) (b)), or that to deal with the applications would require an unreasonable and substantial diversion of resources (section 60 (1) (a)), or that access entitlements lapsed in accordance with section 77 of the GIPA Act. Finally, where three or more such applications have been received in the two years immediately prior to the application, the Tribunal has the statutory discretion to make the restraining order.”

14. The Council contends that Ms Webb’s access applications received on 20 and 29 January 2016, 12 December 2016 and 9 March 2017 all lack merit. The Council decided in all four cases that it did not hold the information sought by Ms Webb. However, in response to the application of 12 December 2016, it decided to release additional information to Ms Webb under s 76 of the GIPA Act.

15. Section 76 provides:

“An agency is authorised to provide access to government information in response to an access application that is in addition to the information applied for, unless there is an overriding public interest against disclosure.”

16. By s 110(2)(b) of the GIPA Act, an access application is to be regarded as lacking merit if the agency decided the application by deciding that none of the information applied for is held by the agency.

17. Section 110(2) is a deeming provision. The effect of it is that, for the purposes of s 110(1), the Tribunal is to regard an application to which s 110(2) applies as one which lacks merit.

18. Ms Webb submits that the Council has not provided any evidence that the information is not held by it and suggests that the Council characterised information as “not held” so as to avoid embarrassment. Ms Webb has provided a number of examples which she says show that the Council misled her. She says that a statement made by a Council officer that the Council could not locate the record of a particular meeting, was “false and misleading” because it later turned out that the Council held records of that meeting.

19. I am not satisfied, from this or from other examples referred to by Ms Webb, that Council deliberately attempted to mislead her. It is possible that it conducted a search for records which it did not find in the first instance, but later located. There is insufficient evidence to support Ms Webb’s serious allegations of bad faith.

20. Because s 110(2) is a deeming provision, the Council is not required to provide evidence that the information is not held by it; all it has to do is to establish that that is what it decided. It is not necessary, in this case, to consider how the provision would operate if the Tribunal were persuaded that an agency had deliberately made decisions which it knew to be incorrect.

21. Ms Webb also submits that the applications received on 20 and 29 January 2016 and 12 December 2016 are each the subject of a review by the Tribunal which is not determined, and that the Council cannot therefore assert that those applications lack merit. The applications are to be regarded as lacking merit because the Council decided that it did not hold the information sought. If the Tribunal were to make a different decision on review, the effect would probably be that the Tribunal’s decision would be substituted for the Council’s decision and s 110(2)(b) would no longer deem that decision to lack merit. However, I note that, after the hearing, the Tribunal affirmed the Council’s decision in respect of the 20 and 29 January 2016 applications: see Webb v Port Stephens Council [2017] NSWCATAD 271. The review of the 12 December 2016 is currently reserved.

22. It follows that, by operation of s 110(2)(b) of the GIPA Act, Ms Webb’s applications of 20 and 29 January 2016, 12 December 2016 and 9 March 2017 “lack merit” for the purposes of s 110(1). The circumstance that the Council decided to provide Ms Webb with access to information she had not applied for, in response to her application received on 12 December 2016, does not affect this conclusion.

23. For the above reasons, Ms Webb has made four applications which lack merit in the past two years, and the Tribunal has power to make the orders sought by the Council. The next question is whether the Tribunal should exercise its discretion to make those orders.

Exercise of discretion

24. The Tribunal has a broad discretion as to whether to make an order under s 110 if the criteria for making an order are satisfied.

25. The Council relied upon Palerang Council, Queanbeyan City Council & Goulburn Mulwaree Council v Powell [2015] NSWCATAD 44 at [56] and [68], where Senior Member Montgomery accepted the Councils’ submissions that the following factors were relevant, in those proceedings, to the discretion under s 110:

1. The total number of access applications (including but not limited to applications which lack merit) that have been made;

2. The fact that the applications are all in one way or another seeking information about the same thing…;

3. The amount of information the agencies have provided in response to those applications;

4. The resources of the agencies; and

5. The conduct of the access applicant.

26. Senior Member Montgomery considered those factors to be relevant to the particular case before him. The Tribunal was not, in that case, identifying the factors which would be relevant to every application under s 110 of the GIPA Act. It is important not to unduly circumscribe the discretion under s 110 by routinely applying a list of non-statutory considerations to applications made under that provision. I have addressed these factors below, because the Council has made submissions about each of them. However, this is not to suggest that they must be addressed in every application under s 110 of the GIPA Act, or that other considerations will not be relevant.

Number of access applications made

27. The evidence of the Council is that, between 2011 and 2015, Ms Webb lodged four formal applications and 13 informal applications under the GIPA Act. From June 2015 until the hearing date, the Council’s evidence is that Ms Webb lodged 16 formal applications representing 173.5 processing hours and 50 informal applications representing a total of 92.25 processing hours. It says that Ms Webb made two additional formal applications shortly before the hearing, one of which resulted in the information being released to her in full and one which was still being processed at the time of the hearing.

28. Ms Webb disputes that she has lodged the number of access applications claimed by the Council, providing a table of her access applications. This indicates that she lodged four access applications in 2012 and eighteen access applications since the beginning of 2016. These figures appear to be the same as those ultimately relied upon by the Council.

29. I find that Ms Webb has lodged eighteen access applications between June 2015 and the hearing. I do not take into account the four access applications lodged by her in 2011, because that is some time ago and it is not an excessive number.

30. Ms Webb submits that the number of informal GIPA applications she has made is not relevant. I agree with her. Section 8(1) of the GIPA Act provides: “An agency is authorised to release government information held by it to a person in response to an informal request by the person (that is, a request that is not an access application) unless there is an overriding public interest against disclosure of the information.” Although the Council has described Ms Webb’s informal requests as “informal applications” (a term Ms Webb also used), this does not accurately reflect the statutory language.

31. Section 110 is concerned with restraining the making of access applications which Council is required to deal with. An agency is not required to process informal requests, although it may be acknowledged that it will take an agency time to respond to such a request. This may, however, only be the time needed to write a letter advising the recipient to lodge a formal access application. If a restraint order under s 110 is made, this does not restrict the making of informal requests.

32. I do not need to decide whether, in certain circumstances, the making of a large number of informal requests could be relevant to the determination of an application under s 110. I do not consider it to be a relevant factor in this case. If I am wrong and it is relevant, it is not a factor to which I would give significant weight.

Amount of information provided

33. Of the eighteen access applications made since June 2015, the Council has granted access to all of the information sought for three applications, some of the information sought for ten applications and one application was undetermined as at the date of the hearing. The four which were entirely unsuccessful are the applications lacking in merit, which are referred to above.

34. Ms Webb has therefore had a reasonable degree of success, being provided with information in thirteen of the seventeen applications which were determined at the time of hearing.

Subject matter of the access applications

35. The Council relies upon the circumstance that most of Ms Webb’s access applications relate to the Property. Whilst this may be so, I do not regard this as a factor which significantly favours making the restraint order. Ms Webb submits that the Council has “failed to identify any clause of the GIPA Act which stipulates that an Applicant is not able to make multiple request for various aspects of a particular file or subject matter.” As Ms Webb submits, there is nothing in the Act, or in the policy of the Act, which precludes this.

36. It may be different if an applicant for information lodged multiple applications which were effectively seeking the same information. This would be a factor in favour of making a restraint order, as it would suggest that the access applicant’s applications were vexatious or misconceived.

Council’s resources

37. Mr Wickham, the governance manager at the Council, gave evidence, which I accept, that between July 2015 and April 2017 the Council received 52 applications under the GIPA Act of which sixteen were lodged by Ms Webb. The Council claimed, and I accept, that this represented approximately 31% of the total applications received by the Council and took 173.5 processing hours, representing approximately 33% of the Council’s staff resources allocated to such applications.

38. Mr Wickham also gave oral evidence that the number of access applications lodged by Ms Webb has had an impact on the Council’s staff, including on their workload. He said that Ms Webb made it quite confusing in not assisting the Council with limited information. He said that Ms Webb has a habit of not spelling out what she is after, meaning that staff members have to contact her to clarify the scope of her application. He also said that Ms Webb’s communications with Council generally, including the making of Code of conduct complaints, was stressful for staff.

39. I accept Mr Wickham’s evidence that Ms Webb’s access applications impact upon staff workload. I also accept that, from the Council’s perspective, there is a need to clarify matters in Ms Webb’s access applications with her. The impact of her complaints is a separate matter, but I appreciate that this may make it more difficult or stressful for staff members to deal with Ms Webb’s access applications.

40. I have some hesitation in taking into account the proportion of the Council’s resources which were taken by Ms Webb’s access applications. Under s 110(1), a restraint order may be made where a person has made access applications to a number of agencies. Whilst an order may be limited to a particular agency (s 110(3)), this does not necessarily mean that the amount of that agency’s resources is relevant. Section 110(1) is focused upon the conduct of the applicant for information, not upon the character of the agency to which the applications are made. Had the applications been made to a large government department, the proportion would be much smaller.

41. I will assume, however, that this factor is relevant, having regard to s 110(3) and in light of the New South Wales Ombudsman’s ‘Opening Up Government – Review of the Freedom of Information Act 1989’ report of 5 February 2009, which gave rise to the GIPA Act, relevant parts of which are set out in Pittwater Council v Walker [2015] NSWCATAD 34 at [64]-[66]. I am prepared to give the workload of Council staff and the resources taken up by Ms Webb’s access applications some weight. However, it is to be recalled that a person is entitled to apply for information under the GIPA Act and “has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information” (GIPA Act, s 9(1)). Ms Webb did apply for information and was provided with it in response to most of the applications she made. Ms Webb was only exercising her legal rights when she made the eighteen access applications. To some extent, agencies are required to allocate staff to deal with access applications.

42. Eighteen applications over a period of just under two years is not an inconsiderable number, but nor should it be regarded as excessive. Similarly, 173.5 processing hours over that period is substantial, but that is not, in my view, an amount which strongly indicates that the Tribunal should exercise its discretion to make a restraint order.

Conduct of Ms Webb

43. The Council sought to rely upon the conduct of Ms Webb as a factor in favour of the making of a restraint order.

43. Ms Webb and the Council have been engaged in correspondence, some of an antagonistic nature, over a long period of time. The Council says that Ms Webb has made defamatory comments about its staff members. In 2011, the Council instigated a policy that Ms Webb and her partner were only permitted to submit two items of correspondence to the Council each month. Its evidence is that this restriction of service was put in place as a result of the conduct of Ms Webb and her partner and the large volume of correspondence. The restriction of service was lifted in 2013.

44. The Council also states that Ms Webb and her partner have made nine complaints about its officers under its Code of Conduct which have not, to date, been substantiated. Further, it says that Ms Webb has lodged complaints about the Council and its officers with other agencies such as the Office of Local Government, the Information and Privacy Commission, the Ombudsman, the Independent Commission Against Corruption and various members of Parliament. Ms Webb does not dispute this.

45. Ms Webb’s position is that she has not made defamatory statements and that the Council has behaved unreasonably in relation to her. She also complains about the conduct of particular Council officers.

46. The purpose of s 110 of the GIPA Act is not to control or punish individuals who take up a lot of agency time. It is not a way of managing people who might be regarded by an agency as vexatious. It has a very specific focus, being to control the making of access applications which lack merit.

47. The Tribunal’s role in determining an application under s 110 is similarly fairly focused. It is not the Tribunal’s role to determine other disputes between the parties, such as whether an individual has made defamatory statements, whether a Council officer behaved improperly or whether the sending of a large volume of correspondence was justified.

48. For these reasons, I decline to take into account the alleged conduct of Ms Webb, upon which the Council relies, as a factor in favour of granting the restraint order. I also decline to take into account the alleged conduct of the Council’s officers upon which Ms Webb relies.

Other factors

50. Ms Webb says that she adopted the following policy when drafting and lodging access applications:

“To assist Council’s purposes and in the hope of expediting each Application, I have at all times made every endeavour to keep the requests for information specific and separate so as not to cause any avoidable confusion, manage the associated processing charges, and make the best use of Council’s time and resources.

I also took the individual lodgement approach become of the conduct of senior Council staff during the Development Application process…. I chose to keep the Formal GIPA Applications separate in the event I would require an Administrative Review and so acted proactively in order to assist any NCAT proceedings.”

51. I accept Ms Webb’s explanation for why she did not consolidate her applications under the GIPA Act. Irrespective of the merits of this approach, it indicates that another applicant may have made fewer applications, whilst still seeking the same amount of information.

Determination

52. Ms Webb has made four access applications within a two-year period which lack merit. Under s 110(1) of the GIPA Act, only three such applications are required before the Tribunal may make a restraint order. The circumstance that four have been made (one above the statutory minimum) supports the making of an order. The making of the order is also supported by the consideration that her access applications have had an impact on the workload of Council staff and the resources of the agency.

53. Notwithstanding this, there are other factors which weigh against the making of the order.

54. When considering the access applications made to the Council by Ms Webb since mid-2015, it could not reasonably be concluded that the making of those applications was vexatious. At the time of the hearing, she had made eighteen access applications in a little over eighteen months. Many of these could have been consolidated (with little if any benefit to the Council), which would have resulted in a lower figure. Most of Ms Webb’s access applications were determined, at least partly, in her favour. Although it is not necessary for an access applicant to engage in vexatious conduct to be the subject of a restraint order, the reasonableness of the number of access applications made, and their degree of success, are factors relevant to the exercise of discretion.

55. I also note that Ms Webb’s access applications which lacked merit were fairly specific in their terms. For example, the application of 29 January 2016 sought the copy of a particular councillor’s request to council staff in relation to a specific development application, with reference to a particular month and year in which the request was thought to have been made. The application of 9 March 2017 sought information about dates Council removed information about a particular development application from its “DA Tracker” and reloaded the information, and an explanation for why it did so. Although the request for an explanation was misconceived, this was not, at least on its face, an application seeking voluminous information and requiring the Council to search for it in multiple places.

56. The relatively focused nature of the access applications which lacked merit is another discretionary factor against making the order sought.

57. Ms Webb was exercising a statutory right to apply for access to information. Her access applications, considered as a whole, were not vexatious. Section 110 allows the Tribunal to restrict that right in future, if the relevant criteria are met and the Tribunal determines that this is appropriate. I have had regard to an important object of the GIPA Act, to give members of the public an enforceable right to access government information (s 3(1)(b)), as well as to the policy of s 110 to give the Tribunal power to curtail that right in certain circumstances. I am not satisfied that I should restrain Ms Webb’s right to make access applications in the circumstances of this case.

58. Having regard to the number of access applications made by Ms Webb since early 2016, the amount of information Ms Webb has received in response and the nature and number of her applications which are lacking in merit, I have decided to exercise my discretion against the making of a restraint order.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 22 August 2019