Sneesby v Shoalhaven City Council [2019] NSWCATAD 234
Read the full decision here: https://www.caselaw.nsw.gov.au/decision/5dc49e0be4b0ab0bf6073b4a
Summary
This matter concerned an application for information about the dumping of waste and a chemical spill at a particular location in Falls Creek. The Applicant sought information concerning action taken by the agency, together with building, development and planning approvals for the site. The Tribunal set aside the decision of the agency and made a decision in substitution that the Respondent provide access to the withheld information, save for one document which was subject to legal professional privilege and therefore had a conclusive presumption of overriding public interest against disclosure. The Tribunal also decided to redact the names of directors of the companies, which were no longer sought by the Applicant. Before the decision came into effect, the Tribunal allowed third parties who could have been aggrieved by the decision to exercise their rights to appear and be heard.
What you need to know
The decision affirms the importance of agencies understanding their obligations to consult third parties under section 54 of the Government Information (Public Access) Act 2009 (GIPA Act).
Where third party consultation is to be undertaken, agencies should make clear who is being consulted and on what basis. If consultation is done through a legal or other representative, it should be clear whether they are being consulted on behalf of their client or in respect of the legal or other representative’s information.
Importantly, even if a third party objects to the release of their information, the agency may only decide to refuse the applicant access to information after proper application of the public interest test. This requires determining whether there are public interest considerations against disclosure (in this case none were established) and whether, on balance, those considerations outweigh the public interest considerations in favour of disclosure (section 13 of the GIPA Act).
The obligation to undertake consultation under section 54 of the GIPA Act does not require the applicant’s agreement or consent, and there is no exception to the consultation requirements where an applicant withholds their consent.
Legislative background
GIPA Act
Section 12 Public interest considerations in favour of disclosure
Section 13 Public interest test
Clause 5 of Schedule 1: Legal professional privilege
Table to section 14 public interest considerations against disclosure: clause 3(a) reveal an individual’s personal information; clause 3(b) contravene an information protection principle under the Privacy and Personal Information Protection Act 1998 or a Health Privacy Principle under the Health Records and Information Privacy Act 2002; clause 3(c) prejudice any court proceedings by revealing matter prepared for the purposes of or in relation to current or future proceedings and clause 3(d) prejudice the fair trial of any person, the impartial adjudication of any case or a person’s right to procedural fairness
Section 54 Consultation on public interest considerations
Factual background
In processing the Applicant’s access application, the agency sought his consent to consult third parties. The Applicant did not consent and the initial decision and internal review decision were made to withhold third party information.
After receiving the internal review decision, the Applicant advised the Respondent that he consented to third parties being consulted. Even though the internal review had been determined, the Respondent wrote to legal and planning representatives of the third parties about whether access should be provided to the information. Two representatives objected and one did not respond.
The Respondent then wrote to the Applicant and advised him that its internal review decision remained.
Tribunal findings
The Tribunal considered the public interest considerations against disclosure of the information advanced by the Respondent in its internal review decision. It found that none of the grounds were substantiated apart from the ground in clause 5 of Schedule 1 in relation to an internal legal advice to the Respondent. Because the grounds were not satisfied in relation to the remaining material, the Tribunal found it was not necessary to conduct the balancing exercise contemplated by section 13 of the GIPA Act.
The Tribunal observed that the Respondent appeared to have believed that it could not consult third parties without the Applicant’s consent. The Tribunal found this to be erroneous because section 54(1) of the GIPA Act does not provide an exemption from the obligation to consult a person before providing access to information relating to the person if the applicant does not give consent.
The Tribunal found that the rights of certain third parties to be consulted under s 54 of the GIPA Act had not been properly observed, including because consultation had been done after the internal review decision was made and because it was not apparent in what capacity the representatives were consulted, for example whether it was at the request of the individuals whose information was at issue.
To allow third parties the opportunity to appear and be heard in the Tribunal proceedings prior to the release of information, the Tribunal made orders similar to those in a previous decision of Quipolly Water Action Group v NSW Department of Industry [2016] NSWCATAD 252. This allowed third parties to raise objections and be heard, and otherwise for the decision to set aside and substitute the Respondent’s decision to take effect at the expiry of 14 days of the publication of its decision.
