Smith v Pittwater Council

Case [2016] NSWCATAD 67

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Smith v Pittwater Council [2016] NSWCATAD 67
Hearing dates:1 December 2015
Date of orders: 12 April 2016
Decision date: 12 April 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 withheld information is to be released to the Applicant except as provided for in these reasons.

Catchwords: Government Information Public Access - confidential information - personal information - information provided to an agency in confidence - whether expected expose a person to risk of harm or of serious harassment or serious intimidation - balance of public interest considerations - sufficiency of search
Legislation Cited: Government Information (Public Access) Act 2009
Freedom of Information Act 1989
Cases Cited: AEZ v Commissioner of Police NSW Police Force [2013] NSWADT 90
Attorney General’s Department v Cockcroft (1986) 10 FCR 180
Camilleri v Commissioner of Police NSW Police Force [2012] NSWADT 5
Cianfrano v Director General Department of Commerce and anor (No 2) [2006] NSWADT 195
Commissioner of Police v Camilleri [2012] NSWADTAP 19
Crewdson v Central Sydney Area Health Service [2002] NSWCA 345
Director General, Department of Education & Training v Mullett & anor (GD) [2002] NSWADTAP 13
Hurst v Wagga Wagga City Council [2011] NSWADT 307
Kreutzer v University of Sydney [2015] NSWCATAD 270
McKinnon v Blacktown City Council [2012] NSWADT 44
Raven v The University of Sydney [2015] NSWCATAD 104
Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464
Williams v Department Industry and Investment [2012] NSWADT 192
Category:Principal judgment
Parties: Ross Smith (Applicant)
Pittwater Council (Respondent)
Representation: R Smith (Applicant in person)
Pittwater Council (Respondent in person)
File Number(s):1510476

REASONS FOR DECISION

  1. The Applicant lodged a formal access application with Pittwater Council (“the Council”) seeking access to information under the Government Information (Public Access) Act 2009 (“the GIPA Act”) in June 2015. He requested:

A copy of any and all material relating to the investigation of the complaint made by Mr Ross Smith (Applicant) dated 2 April 2015 relating to Mr Warwick Lawrence.

This material would be, but is not limited to, all internal and external emails, memos, letters and the like, notes taken at interviews, audio recordings that may have been made during interviews, third party correspondence, and any other material on Council's system not covered by this general description.

  1. He indicated that he was seeking the material requested to ascertain the thoroughness with which the investigation of his complaint was carried out. He excluded from his request emails that he had sent to the Council and a letter that he had received from the Council.

  2. Ms Sonya Gallery, the Council’s Principal Officer – Governance determined the access application. She identified three documents as falling within the scope of the request:

Document 1 - Formal Complaint Case Management Form, dated 16 June 2015

Document 2 - Statement from…

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AGLC
Smith v Pittwater Council [2016] NSWCATAD 67
Case
[2016] NSWCATAD 67
Decision Date

CaseChat Overview and Summary

Smith sought access to information held by the Pittwater Council under the Government Information (Public Access) Act 2009 (NSW). The information related to his application for a development approval. The Council withheld the information on the basis that it was exempt from disclosure because disclosure would expose Smith to a serious risk of harm, harassment, or intimidation. Smith applied to the Land and Environment Court of New South Wales for a review of the decision. The Court found that the information was exempt from disclosure because it contained personal information that was provided to the Council in confidence and disclosure would expose Smith to a serious risk of harm, harassment, or intimidation.

The Court was required to decide whether the information was exempt from disclosure under the Act and, if so, whether the exemption was justified in the circumstances. The Court found that the information was exempt from disclosure because it contained personal information that was provided to the Council in confidence. However, the Court also found that the exemption was not justified in the circumstances because the Council had not adequately balanced the public interest considerations against the risk to Smith.

The Court held that the Council had not adequately considered whether the risk to Smith was serious and whether the information was necessary to expose that risk. The Court also held that the Council had not adequately considered whether the risk to Smith outweighed the public interest in disclosure of the information. The Court found that the Council had not made a sufficient search for alternative information that could be disclosed instead of the personal information. The Court held that the Council's decision was unreasonable and set it aside.

The Court ordered that the decision under review be set aside and that the information be released to Smith except for the personal information that was provided to the Council in confidence. The Court ordered that the Council was to pay Smith's costs of the application for review.

Orders

Orders of the court

1. The decision under review is set aside

2. The decision is made that the withheld information is to be released to the Applicant except as provided for in these reasons.

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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