Webb v Port Stephens Council - [2017] NSWCATAD 271

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Webb v Port Stephens Council [2017] NSWCATAD 271
Hearing dates: 20 March 2017
Date of orders: 08 September 2017
Decision date: 08 September 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Montgomery, Senior Member
Decision:
The decision by Port Stephens Council in regard to each of matters 2016/00378011; 2016/00378010; 2016/00377987; 2016/00378165 is affirmed.

Catchwords: GOVERNMENT INFORMATION – public interests against disclosure – whether information is held by the agency - reasonableness of searches - personal information – risk of harm or serious harassment or serious intimidation - balance of public interest considerations - overriding public interest against disclosure of information
Legislation Cited: Government Information (Public Access) Act 2009
Cases Cited: AEZ v Commissioner of Police NSW Police Force [2013] NSWADT 90
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
Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201
Kanak v NSW Department of Education and Communities [2017] NSWCATAD 206
McEwan v Port Stephens Council [2017] NSWCATAD 269
Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464.
Category: Principal judgment
Parties: Telina Webb (Applicant)
Port Stephens Council (Respondent)
Representation:
T Webb (Applicant in person)
Solicitors:
L Marshall (Respondent)

File Number(s): 2016/00378011; 2016/00378010; 2016/00377987; 2016/00378165

reasons for decision

The Applicant lodged a number of access applications with Port Stephens Council (“the Respondent” or “the Council”) under the Government Information (Public Access) Act 2009 (“the GIPA Act”) seeking access to information held by the Council.
The Applicant was not satisfied with the response that she received from the Council in response to her access applications and she sought external review in this Tribunal. While each of the matters is the subject of a separate application, the matters were listed for hearing together and there was significant overlap in the material placed before the Tribunal in the various matters. It is convenient to deal with the separate matters in a single decision.
These matters were also heard with a related matter and the evidence in that matter was also evidence in these matters: see McEwan v Port Stephens Council [2017] NSWCATAD 269 (“McEwan”).

The Issues for determination

The Applicant has sought access to information held by the Council. The Council has determined that some information is not held and it determined to release other information. The Applicant does not accept that the Council has located all the material that it holds that falls within the scope of her access applications.
The question for determination is whether the searches that the Council has undertaken were sufficient and therefore whether the Council has made the correct and preferable decisions. Where information has been withheld, the question for determination is whether the decision to withhold the information is the correct and preferable decision.

Applicable legislation

The approach to be taken in applications under the GIPA Act…

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.

Continue reading Webb v Port Stephens Council

Details

AGLC: Webb v Port Stephens Council [2017] NSWCATAD 271
Case: [2017] NSWCATAD 271
Decision Date: 08 September 2017

CaseChat Overview and Summary

The case of Webb v Port Stephens Council involved a dispute concerning the disclosure of certain information held by the Council. The plaintiff sought the release of information under the Government Information (Public Access) Act 2009 (NSW). The dispute was heard and determined by the Land and Environment Court of New South Wales. The central issue before the court was whether the requested information was held by the Council and, if so, whether it should be disclosed. A secondary issue was whether the Council had conducted reasonable searches for the information and if the information, when found, warranted exemption from disclosure due to potential harm, harassment, or intimidation.

The court examined whether the information was held by the Council and whether the searches conducted were reasonable. The court also assessed the potential risk of harm, harassment, or intimidation that might result from the disclosure of the information. It considered the balance of public interest considerations, including the overriding public interest against disclosure, as stipulated in the legislation. The court found that the Council had conducted reasonable searches and that the information, while held by the Council, was subject to exemptions due to the potential for serious harm, harassment, or intimidation.

Consequently, the court affirmed the decisions of the Council regarding the four specified matters. The court upheld the Council's decisions not to disclose the information, given the substantial risk of harm, harassment, or intimidation that disclosure would entail. The court concluded that the public interest in withholding the information outweighed the public interest in its disclosure.

Orders

Orders of the court

The decision by Port Stephens Council in regard to each of matters 2016/00378011; 2016/00378010; 2016/00377987; 2016/00378165 is affirmed.

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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Medium Neutral Citation:	Webb v Port Stephens Council [2017] NSWCATAD 271
Hearing dates:	20 March 2017
Date of orders:	08 September 2017
Decision date:	08 September 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	The decision by Port Stephens Council in regard to each of matters 2016/00378011; 2016/00378010; 2016/00377987; 2016/00378165 is affirmed.
Catchwords:	GOVERNMENT INFORMATION – public interests against disclosure – whether information is held by the agency - reasonableness of searches - personal information – risk of harm or serious harassment or serious intimidation - balance of public interest considerations - overriding public interest against disclosure of information
Legislation Cited:	Government Information (Public Access) Act 2009
Cases Cited:	AEZ v Commissioner of Police NSW Police Force [2013] NSWADT 90 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 Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 Kanak v NSW Department of Education and Communities [2017] NSWCATAD 206 McEwan v Port Stephens Council [2017] NSWCATAD 269 Shepherd and Department of Housing, Local Government and Planning [1994] QICmr 7; (1994) 1 QAR 464.
Category:	Principal judgment
Parties:	Telina Webb (Applicant) Port Stephens Council (Respondent)
Representation:	T Webb (Applicant in person) Solicitors: L Marshall (Respondent)
File Number(s):	2016/00378011; 2016/00378010; 2016/00377987; 2016/00378165