Richards v Gold Coast City Council
[2012] QCATA 177
•20 September 2012
| CITATION: | Richards v Gold Coast City Council and Anor [2012] QCATA 177 |
| PARTIES: | Andrew John Richards (Applicant/Appellant) |
| v | |
| Office of Information Commissioner (First Respondent) Gold Coast City Council (Second Respondent) |
| APPLICATION NUMBER: | APL134-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Townsville |
| DECISION OF: | Hon K Cullinane, Judicial Member |
| DELIVERED ON: | 20 September 2012 |
| DELIVERED AT: | Townsville |
| ORDERS MADE: | 1. The appeal is dismissed. |
| CATCHWORDS: | STATUTES – ENFORCEMENT OF STATUTORY RIGHTS AND REMEDIES – GENERALLY – where applicant sought access to information – where Information Commissioner refused access – whether Commissioner erred in law – whether grounds for appeal Queensland Civil and Administrative Tribunal Act 2009, s 32 Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).
REASONS FOR DECISION
This is an appeal pursuant to s 119 of the Right to Information Act2009 (‘the Act’) against a decision of the Information Commissioner (‘the Commissioner’) refusing access to certain information concerning the Appellant (the party seeking the information in issue).
Section 119 of the Act provides for a limited right of appeal:
1)A participant in an external review may appeal to the appeal tribunal against a decision of the information commissioner on the external review.
2)The appeal may only be on a question of law.
3)The notice of appeal must, unless the tribunal orders otherwise –
a)Be filed in QCAT’S registry within 20 business days after the date of the decision appealed from; and
b)Be served as soon as possible on all participants in the external review.
4)The appeal tribunal-
a)has jurisdiction to hear and decide the appeal; and(b)must be constituted by 1 judicial member
5)The appeal may only be by way of a rehearing.
The jurisdiction under this provision is original and the proceedings are in the nature of judicial review.[1]
[1] Osland v Secretary to the Department of Justice (No 2) (2010) 241 CLR 320.
Section 12 of the Act confers on a person a right of access to documents of an agency and documents of a Minister. The object of the Act is stated in s 3(1). Section 3(2) requires the Act to be applied and interpreted to further this object.
The right of access to information is however qualified. Information is exempt information if it falls within s 48 of the Act. Section 10(1)(d) of Schedule 3 defines exempt information as: information the disclosure of which could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation.
The appellant in his application sought:
…all documents etc in relation to myself held by Council in any capacity or form with anyone else or other agency (Queensland Government, NSW Government, Local Governments).
The history of the matter is set out in the appendix to the decision (attached hereto).
The respondent Council did not deal with the matter within the relevant time limit, with the result there was a deemed refusal.
Council nonetheless continued to process the application and allowed access to some of the information. This appeal relates to the information which remained in issue.
The information in issue is described in [8] of the reasons in the following terms:
The applicant has had extensive contact with Council staff over a number of years relating generally to his dogs and Council’s establishment and implementation of the local law concerning dangerous dogs. The information in issue comprises a range of information about the application including records of his dealings with Council staff and elected officials in relation to these and other issues.
In refusing access to some of the information, the respondent Council did so on the grounds that (inter alia) its disclosure could reasonably be expected to result in a person being subjected to a serious act of harassment or intimidation.
The Commissioner’s findings upholding the Council’s refusal are summarised at [3] of her reasons:
I find that the applicant has engaged in serious acts of harassment and intimidation of Council staff and elected representatives in the past. Based on this previous pattern of conduct, the poor state of the relationship between the applicant and Council and the fact that the subject matter elicits a strong response from the applicant I am satisfied that disclosing any of the information in issue in this review (Information in Issue) could reasonably be expected to result in Council staff or elected officials being subjected to a serious act of harassment or intimidation. I am satisfied that Council was entitled to refuse access to the Information in Issue as it comprises exempt information.
The issue and the only issue on this appeal is whether the Commissioner in dealing with the matter on external review and in reaching her decision has made an error of law which affects the determination.
The identification of a question of law in the appellant’s notice of appeal is not easy:
I have duty & discovery with and on any document, image, movie with me and any information on it .The RTI Act 2009 promotes openness transparency and public accountability .They have forged & uttered my court result of 13.5.10 & used it against me .They have conspired to pervert the course of justice .Fraud maladministration abuse of office, corruption. Character assassinated me. [sic]
The appellant’s outline consists of some fifteen pages that raise a wide variety of matters, many far removed from the issue which falls for consideration here.
It can be accepted that the appellant contends that he has an unqualified right of access to the information. However, as I have already said, it is clear that the right is qualified by the Act. It does not apply to exempt information.
The respondent is prepared to concede that the grounds of appeal and the outline raise arguably three questions of law.
The first is that the Commissioner found that there was a reasonable expectation of council staff or elected representatives being subjected to a serious act of harassment or intimidation where there was no evidence to support this. The question whether this would give rise to a question of law is debatable.[2]
[2]See Hope v Bathurst City Council (1980) 144 CLR 17, National Railways Commissioner v The Collector of Customs (1992) 35 FCR 371, Federal Commissioner of Taxation v Broken Hill South (1941) 65 CLR 280 and Collector of Customs v Pozzolanic Enterprises Pty Ltd 280. The last case summarises the principles relevant to this question.
I am prepared to assume that a question of law arises in such a case.
I have read the extensive material constituting the information in issue and it is apparent that the information commissioner’s findings are amply justified.
As to the second ground the respondent concedes is raised, namely that the commissioner lacked power on external review to make an order affirming the deemed refusal, it is clear from ss 85 and 110 of the Act and the definition of reviewable decision in the dictionary (Schedule 6 to the Act) that there is jurisdiction.
Finally, as to the claim there was a denial of natural justice, the conduct of the review is largely left to the Commissioner subject to the obligation to adopt procedures which are fair.[3]
[3] See s 97 of the Act.
Here the Commissioner notified the appellant of her preliminary views asking for his submissions if he did not accept these. Some further intimations of a preliminary view were conveyed with an invitation to the appellant to respond to them. On each occasion the appellant said that he did not intend to make submissions.
In my view the appellant has not established any basis on which the commissioner’s decision should be set aside.
The appeal is dismissed.
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