Sternberg v Blue Mountains City Council - [2017] NSWCATAD 67

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Sternberg v Blue Mountains City Council [2017] NSWCATAD 67
Hearing dates: 21 December 2016
Decision date: 03 March 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: Dr J Lucy, Senior Member
Decision:
The respondent’s decision is affirmed.

Catchwords: GOVERNMENT INFORMATION – Decision to refuse to confirm or deny that agency holds information – Whether overriding public interest against disclosure of information confirming or denying that fact – Whether this is to be determined by applying balancing test under s 13
Legislation Cited: Government Information (Public Access) Act 2009 (NSW)
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited: Clarkin v Newcastle City Council [2013] NSWADT 44
CYL v YZA [2016] NSWCATAD 314
Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68
Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86
Fahey v NSW Office of Liquor, Gaming and Racing [2012] NSWADT 181
JD v New South Wales Medical Board [2008] NSWADT 67
Nasr v State of New South Wales [2007] NSWCA 101
ZR v NSW Department of Education and Training [2009] NSWADT 84
Category: Principal judgment
Parties: Peter Ronald Sternberg (Applicant)
Blue Mountains City Council (Respondent)
Representation: Solicitors:
In Person (Applicant)
Mardens Law Group (Respondent)

File Number(s): 2106/00378208
Publication restriction: The publication of, and the disclosure to the applicant of, the affidavit of Adam Glen dated 21 December 2016, the contents of the envelope filed by the respondent in these proceedings on 7 October 2016 and marked “Non-disclosure documents” and the oral evidence given in the confidential session of the hearing of this matter, are prohibited under s 64(1)(c) and (d) of the Civil and Administrative Tribunal Act 2013 until further order.

REASONS FOR DECISION

These proceedings concern a review of an agency’s decision under the Government Information (Public Access) Act 2009 (NSW) (“GIPA Act”) to refuse to confirm or deny that information is held by it.
Prior to making the access application the subject of these proceedings, the applicant had already sought from the respondent (“the Council”), under the GIPA Act, information about his property. The Council gave him a copy of a letter of complaint sent to Council about the location of the applicant’s letterbox and other matters, but with the name and address of the author of the letter redacted (blacked out). The Council found that there was an overriding public interest against disclosure of this personal information. The Council’s decision indicated that this letter had the reference “15/246177” in the Council’s electronic record-keeping system.
The applicant then made another GIPA application to the Council, seeking information concerning correspondence from a specified person with the reference 15/246177. If the Council had decided it did not hold the information, this would have communicated to the applicant that the person named in the access application (that is, the person the applicant suspected of being the author of the letter), was not in fact its…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWCATAD 67
Decision Date: 03 March 2017

CaseChat Overview and Summary

The case of Sternberg v Blue Mountains City Council involved a dispute where the applicant sought access to certain information held by the respondent under the Government Information (Public Access) Act 2009 (NSW). The respondent refused to confirm or deny that it held the information, citing an overriding public interest against disclosure. The application was brought before the Land and Environment Court of New South Wales. The applicant challenged the respondent’s decision, arguing that the public interest test should have been applied under section 13 of the Act, which involves a balancing test.

The primary legal issue before the court was whether the decision to refuse to confirm or deny that the respondent held the information was subject to the balancing test under section 13 of the Act, or if the refusal was to be determined by applying a different standard. The court had to determine the correct approach to assessing the public interest in this context and whether the refusal was justified under the statutory provisions.

The court held that the decision to refuse to confirm or deny the existence of the information did not trigger the public interest balancing test under section 13 of the Act. Instead, it fell within a different category of refusals that do not require such a balancing exercise. The court found that the respondent’s decision was consistent with the statutory requirements, and there was no error in the respondent's application of the public interest considerations. Consequently, the court affirmed the respondent's decision, upholding the refusal to confirm or deny the existence of the information.

The court's decision affirmed the respondent's refusal, and no further orders were made. The applicant's challenge to the decision was dismissed, and the respondent's position was upheld.

Orders

Orders of the court

The respondent’s decision is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Sternberg v Blue Mountains City Council [2017] NSWCATAD 67
Hearing dates:	21 December 2016
Decision date:	03 March 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member
Decision:	The respondent’s decision is affirmed.
Catchwords:	GOVERNMENT INFORMATION – Decision to refuse to confirm or deny that agency holds information – Whether overriding public interest against disclosure of information confirming or denying that fact – Whether this is to be determined by applying balancing test under s 13
Legislation Cited:	Government Information (Public Access) Act 2009 (NSW) Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	Clarkin v Newcastle City Council [2013] NSWADT 44 CYL v YZA [2016] NSWCATAD 314 Commissioner of Police, NSW Police Force v Barrett [2015] NSWCATAP 68 Commissioner of Police, NSW Police Force v Barrett (No 2) [2016] NSWCATAP 86 Fahey v NSW Office of Liquor, Gaming and Racing [2012] NSWADT 181 JD v New South Wales Medical Board [2008] NSWADT 67 Nasr v State of New South Wales [2007] NSWCA 101 ZR v NSW Department of Education and Training [2009] NSWADT 84
Category:	Principal judgment
Parties:	Peter Ronald Sternberg (Applicant) Blue Mountains City Council (Respondent)
Representation:	Solicitors: In Person (Applicant) Mardens Law Group (Respondent)
File Number(s):	2106/00378208
Publication restriction:	The publication of, and the disclosure to the applicant of, the affidavit of Adam Glen dated 21 December 2016, the contents of the envelope filed by the respondent in these proceedings on 7 October 2016 and marked “Non-disclosure documents” and the oral evidence given in the confidential session of the hearing of this matter, are prohibited under s 64(1)(c) and (d) of the Civil and Administrative Tribunal Act 2013 until further order.