McEwan v Port Stephens Council [2021] NSWCATAD 110

Read the decision here: McEwan v Port Stephens Council [2021] NSWCATAD 110

Summary

Mr McEwan (the applicant) sought review of a decision made by Port Stephens Council (the agency) under the Government Information (Public Access) Act 2009 (GIPA Act) to refuse to provide access to information because of an overriding public interest against disclosure, as provided by:

1.  cl. 3(a), 3(b) (individual rights concerning personal information) and
2. cl. 6 (secrecy provisions) of the Table to s. 14 of the GIPA Act.  

The applicant sought information contained in the agency’s Secondary Employment Register and its Pecuniary Interests Register (PIR).  The agency did not contest that the information contained on the PIR is “open access information” prescribed by the Government Information (Public Access) Regulation 2018 (GIPA Regulation) and subject to the mandatory release obligation under s. 6 of the GIPA Act.

The issue in dispute was whether the information that had been redacted in the 100 pecuniary interest returns comprising the PIR should be withheld. 

The secrecy provisions identified and relied upon by the agency were ss. 57 and 58 of the Privacy and Personal Information Protection Act 1998 (PPIP Act) which prohibit the disclosure of personal information on public registers. In applying the balancing of interests test in s. 13 of the GIPA Act, the Tribunal was satisfied that the evidence in favour of disclosure overwhelmingly overrode the evidence relied upon by the agency and the secrecy provisions of the PPIP Act to refuse disclosure. The Tribunal varied the agency’s decision and ordered the agency to release the information to the applicant.

What you need to know

The decision recognises the importance of information access rights in the NSW statutory scheme under the GIPA Act and by operation of s. 5 of the PPIP Act. The Tribunal confirmed the presumption in favour of disclosure in s. 5 of the GIPA Act and found that the GIPA Act relevantly overrides the provisions of the PPIP Act. The Tribunal explained that the GIPA Act places a high onus on agencies to provide evidence to override the presumption in favour of disclosure under ss. 5 and 12.  

The decision promotes the overriding objective given to public accountability under the GIPA Act, particularly because of the mandate for making “open access information” publicly available. The decision highlights the Tribunal’s view that maintaining a Public Register is of fundamental importance in the public accountability of local councils’ decision-making and the conduct of officers and employees of councils who may be involved in such decision-making.

The decision draws upon regulatory guidance prepared by the Information Commissioner in her functions under s. 17 of the GIPA Act, including:

• Guideline 1 - For Local Councils on the disclosure of information (returns disclosing the interest of councillors and designated persons)
• Guideline 3 - For local councils - personal information contained in development applications: What should not be put on council websites  
• Fact Sheet - Open Access Information for Agencies

Local councils and other agencies can access this guidance here: https://www.ipc.nsw.gov.au/information-access/agencies/resources

The decision also assists agencies by setting out the decision-making approach when applying the
s. 13 test to information that is subject to a secrecy provision identified as a public interest consideration against disclosure under cl. 6 of the Table to s. 14 of the GIPA Act.

Legislative background

GIPA Act

Section 6 mandatory proactive release of certain government information

Section 11 Act overrides secrecy provisions in other legislation

Section 13 public interest test

Section 14 cl. 3(a), 3(b) and 6

Section 18 open access information

Section 54 consultation on public interest considerations

GIPA Regulation

Part 2 Open access information of local authorities

Schedule 1 Additional open access information of local authorities

PPIP Act

Section 5

Section 18

Part 6 Public Registers, ss. 57-59

Factual background

On 28 October 2019, the applicant lodged an application under the GIPA Act for historical and current Secondary Employment Registers and the Pecuniary Interest Register (PIR) maintained by the agency. On 19 December 2019, the applicant agreed to reduce the scope of the application to the financial year ending 2019. On 15 January 2020, the agency decided the application and provided partial access to information concerning the historical Secondary Employment Register, and heavily redacted the PIR return forms because there was a public interest consideration against disclosure of the information. The Information Commissioner reviewed these decisions, and on 29 April 2020, notified the applicant that the Commissioner was not satisfied that the agency had justified its reliance on the public interest considerations against disclosure. On 26 May 2020, the applicant filed an application for review of the decision by the NCAT. The Information Commissioner exercised her right to appear and be heard pursuant to s. 104(1) of the GIPA Act. 

Tribunal findings

In considering the public interest considerations against disclosure of the information contained in the Secondary Employment Register, the Tribunal determined that where the agency has relied on personal information and PPIP Act considerations as public interest considerations against disclosure relying on clause 3(a) and 3(b) of the s. 14 Table, the relevant test remains the public interest test and the balancing exercise mandated by s. 13 of the GIPA Act: [98]

The Tribunal identified the importance of the presumption in favour of disclosure in s. 5 the GIPA Act, and stated that this ensures that the PPIP Act does not modify the operation of the GIPA Act where, in the matters relevantly under consideration, the disclosure of information under the GIPA could reasonably be expected to reveal an individual's personal information (clause 3(a)) or contravene an IPP under the PPIP Act (clause 3(b)): [99]

In adopting this approach, the Tribunal confirmed the effect of s. 5 of the PPIP Act as set out in DRP v Orange City Council [2020] NSWCATAD 220 (DRP). The Tribunal confirmed that in the balancing of interests under s 13 of the GIPA Act, non-compliance with the PPIP Act is permitted where an agency is complying with its obligations under the GIPA Act. Personal information may be used or disclosed pursuant to an obligation under the GIPA Act even if a provision of the PPIP Act would be breached. The weight to be given to the contravention or non-compliance is significantly reduced and still favours disclosure because nothing in the PPIP Act operates "to lessen any obligations" under the GIPA Act: s 5(2) [106].

The importance of public accountability of public registers in the context of access applications was affirmed, with the Tribunal finding that one of the accepted purposes (if not a primary purpose) of the agency maintaining a Secondary Employment Register is to ensure accountability and transparency of councillors and Council employees in the discharge of their duties and functions. Redacting information which includes the nature of the secondary employment disclosed on the register is antithetical to the concept of that document being a public document and limits any disclosures to persons that only the agency itself deems fit to disclose. Public accountability cannot be openly and properly maintained if it is limited to the unilateral decision of the agency as to what is important and relevant in terms of ensuring accountability of Council to the public in the context of an access application. This underscores the importance of the review provisions prescribed by the GIPA Act in respect of public information and the primacy of the GIPA Act over the secrecy provisions of the PPIP Act.

The Tribunal rejected the agency’s submission that the information disclosed about a person's employment outside of the agency "is only of tangential relevance to their responsibilities as Council employees": [120].  The Tribunal also referred to the GIPA Regulation which places open access obligations on local government authorities which specifically includes the matters the subject of the Pecuniary Interests Register, namely the "returns of the interests of councillors, designated persons and delegates": cl 1(2)(a) of Schedule 1: [132].  

In considering the open access information withheld in the returns in the agency’s PIR, the Tribunal noted the mandatory release obligation prescribed by s. 6 of the GIPA Act at [39]-[40]; and the statutory definition and scheme for pecuniary interests returns under the Local Government Act 1993: [121]-[122]. The Tribunal:

• confirmed that s. 6 is the starting point for any consideration of information in the PIR return, which provides for mandatory and proactive release obligations in respect of "open access information" [125]
• affirmed and accepted as correct, the Information Commissioner’s submissions setting out the statutory requirements in relation to s. 6 of the GIPA Act, as set out in Information Commissioner’s guidance in Fact Sheet, Open Access Information under the GIPA Act -Agency Requirements [126]-[127].

Having regard to the statutory context that applies to open access information, the Tribunal outlined the following approach to the s. 13 test:

• it is a question of weighing the competing personal and private interests raised by ss. 57 and 58, being the secrecy provisions of the PPIP Act raised by cl. 6 of the s. 14 Table as a public interest consideration against disclosure, and s. 6 of the GIPA Act relating to the mandatory public release of open access information: [128]
• it is necessary to determine whether the public interest in favour of disclosure outweighs the considerations in cl. 3(b) and cl. 6 of the s. 14 Table that are said by the agency in the case of the pecuniary interest returns to enliven the secrecy provisions of the PPIP Act: [129]
• a decision-maker has to identify the secrecy provision and form an opinion about whether there is a public interest consideration against disclosure. If the secrecy provision provides a public interest consideration against disclosure, the decision-maker is then entitled to consider the secrecy provision in applying the s. 13 test: [130].
• an agency is to establish by cogent and probative evidence that the personal and privacy considerations arising under ss. 57 and 58 of the PPIP Act provide a relevant public interest consideration, and not a mere personal or private consideration to operate against disclosure and this must be even more so where the disputed information is open access information: [134].

Tribunal outcome

The correct and preferable decision is to vary the agency's decision and to release the documents identified at Items 1, 2 and 3-102 of the Schedule to the decision to the applicant without redactions within 28 days of the publication of these reasons.