Sandy v Kiama Municipal Council

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Sandy v Kiama Municipal Council [2019] NSWCATAD 49
Hearing dates:	8 February 2019
Date of orders:	28 March 2019
Decision date:	28 March 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Ludlow, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	ADMINISTRATIVE LAW – government information – form of access – whether reproducing information would infringe copyright
Legislation Cited:	Copyright Act 1968 (Cth) Environmental Planning and Assessment Act 1979 (NSW) Government Information (Public Access) Act 2013 (NSW) Local Government Act 1993 (NSW)
Cases Cited:	Amos v Central Coast Council [2018] NSWCATAD 101 De Garis v Neville Jeffress Pidler Pty Ltd (1990) 37 FCR 99 Demlakian Engineers Pty Ltd v The Owners of Strata Plan 80453 [2014] NSWSC 401 Hollinrake v Truswell (1894) 3 Ch 420 IceTV Pty Limited v Nine Network Australia Pty Limited (2009) AIPC 92-335 Macmillan & Co Ltd v K & J Cooper (1923) 93 LJPC 113 Ogawa v Spender (2006) 152 FCR 228 University of NSW v Moorehouse (1974) 133 CLR 1 Victoria Park Racing and Recreation Grounds Co Ltd v Taylor & Ors (1937) 58 CLR 479 Volunteer Eco Students Abroad Pty Limited v Reach Out Volunteers Pty Limited [2013] FCA 731
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Ken Sandy (Applicant) Kiama Municipal Council (Respondent)
Representation:	Solicitors: BAL Lawyers (Respondent)
File Number(s):	2018/00342227
Publication restriction:	Nil

REASONS FOR DECISION

Background

1. This is an application for review of a decision to refuse access to information under the Government Information (Public Access) Act 2009 (the GIPA Act). The applicant applied for access to information held by the respondent Council relating to a development application for an abattoir adjacent to the applicant’s property.

2. The respondent made a decision on the application on 12 July 2018 giving access to some information and refusing access to other information because of an overriding public interest against disclosure. The applicant sought review of this decision by the NSW Information and Privacy Commission. The Commission provided its report on 31 August 2018, in which it recommended that the respondent make a new decision.

3. On 28 September 2018 the respondent made a new decision. The decision was:

1. To release some of the information sought;

2. To release some information with redactions to protect personal information under s 14(3)(a);

3. To provide “view only” access to copyright protected documents; and

4. Not to release information for which there was an overriding public interest against disclosure under Schedule 1(5) of the GIPA Act.

4. The applicant has sought administrative review by this Tribunal of point (3), that is, the decision to provide “view only” access to certain information.

5. In its decision the respondent stated that to provide copies of the information, which comprised plans, drawings and reports, to the applicant, as requested, would be a breach of copyright. It stated:

“On 3 July 2018 we invited you to contact the copyright owner directly to obtain the information you are seeking with his/her consent but you declined to…