Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Salmon v Corrective Services NSW [2016] NSWCATAD 257 Hearing dates: 19 October 2015; 4 November 2015; 20 November 2015; 10 February 2016 and 24 March 2016 Date of orders: 15 November 2016 Decision date: 15 November 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: (1) The decision under review is set aside.
(2) The decision is made that the email response from Marc Riviere to the Manager, Information Access & Privacy United dated on or around 13 December 2013 is released.
(3) The application for a referral pursuant to section 112 of the Government Information (Public Access) Act 2009 is refused.
(4) The Respondent, and any other person, is prohibited from publishing those headings and paragraphs of these reasons identified as “not for publication”.Catchwords: ADMINISTRATIVE LAW – access to government information – access application – whether release would expose a person to a risk of harm or of serious harassment or serious intimidation Legislation Cited: Government Information (Public Access) Act 2009
Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Crimes (Administration of Sentences) Act 1999Cases Cited: "B" and Brisbane North Regional Health Authority, Re [1994] QICmr 1; (1994) 1 QAR 279
AEZ v Commissioner of Police NSW Police Force [ 2013] NSWADT 90
Attorney General’s Department v Cockcroft (1986) 10 FCR 180
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
McKinnon v Blacktown City Council [2012] NSWADT 44
Salmon v Department of Justice (Corrective Services NSW) [2014] NSWCATAD 160
Searle Australia Pty Limited v Public Interest Advocacy Centre and Another (1992) 108 ALR 163
Smith v Pittwater Council [2016] NSWCATAD 67Category: Principal judgment Parties: Owen Salmon (Applicant)
Corrective Services NSW (Respondent)Representation: Solicitors:
Owen Salmon (Applicant in person)
Corrective Services NSW (Respondent)
File Number(s): 1510405 Publication restriction: See order 4.
REASONS FOR DECISION
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The Applicant lodged an access application with the Respondent under the Government Information (Public Access) Act 2009 ("the GIPA Act) "seeking access to information held by the Respondent. He requested:
1. A letter forwarded to solicitor Marc Riviere in around November 2013 from the Information Access & Privacy Unit ("record one"); and
2. An email response from Marc Riviere to the Manager, Information Access & Privacy United dated on or around 13 December 2013 ("the Riviere email").
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It is common ground Mr Riviere is a solicitor who has represented the Applicant’s ex-wife and her current partner in various legal proceedings including proceedings involving the Applicant.
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The Respondent located two records falling within the scope of the request. It determined to grant partial access to those records. Access was granted to record one but access to the Riviere email was refused. The initial refusal was on the basis of a claim for legal professional privilege. It was asserted that legal professional privilege had been claimed over it and that pursuant to clause 5(1) of Schedule 1 to the GIPA Act, it is conclusively…
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- AGLC
- Salmon v Corrective Services NSW [2016] NSWCATAD 257
- Case
- [2016] NSWCATAD 257
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the release of the email would expose a person to a risk of harm or of serious harassment or serious intimidation, as claimed by the Respondent, and whether the application for a referral under section 112 of the Act should be granted. The court had to weigh the public interest in transparency and access to information against the potential harm to individuals.
The court determined that the Respondent's arguments did not sufficiently establish that releasing the email would expose a person to a risk of harm or of serious harassment or serious intimidation. Consequently, the court found that the decision to withhold the information was not justified. The court set aside the decision under review and ordered that the email response from Marc Riviere is to be released. The application for a referral was refused, and the court prohibited the Respondent and any other person from publishing certain parts of its reasons identified as “not for publication”.
Orders
Orders of the court
(1) The decision under review is set aside.
(2) The decision is made that the email response from Marc Riviere to the Manager, Information Access & Privacy United dated on or around 13 December 2013 is released.
(3) The application for a referral pursuant to section 112 of the Government Information (Public Access) Act 2009 is refused.
(4) The Respondent, and any other person, is prohibited from publishing those headings and paragraphs of these reasons identified as “not for publication”.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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