Case Note: Webb v Port Stephens Council [2022] NSWCATAD 404

Read the decision here: Webb v Port Stephens Council [2022] NSWCATAD 404

Summary

The Applicant lodged an access application with Port Stephens Council (the Respondent) seeking access to documents connected with GIPA Act training sessions provided to the Respondent’s staff by the Crown Solicitor’s Office (CSO). The Respondent provided full access to some documents, and only partial access to some documents due to an overriding public interest against disclosure of some information contained in those documents. The Respondent also decided to provide view only access to a document of the Information and Privacy Commission NSW (IPC), Document 38, release of which without the IPC’s consent would contravene the Copyright Act 1968 (Cth).

The Tribunal was satisfied that the public interest considerations against disclosure outweighed those in favour of disclosure. The Tribunal also held that the Respondent’s method of arranging the Applicant to access the IPC information via view-only inspection was appropriate as release without the IPC’s consent would contravene the Copyright Act.

What you need to know

Agencies must consider whether providing access to information would involve an infringement of copyright before providing access.

It is appropriate for an agency to provide view-only access to information where providing that information would contravene the Copyright Act 1968 (Cth).

Copyright attaches to the IPC’s training materials.

Legislative background

GIPA Act

Section 14 public interest considerations against disclosure

Section 72 forms of access

Section 74 deletion of information from copy of record to be accessed

Factual background

The Applicant lodged an access application with the Respondent seeking access to documents connected with GIPA Act training sessions provided to the Respondent’s staff by the CSO. The Respondent provided full access to some documents, and only partial access to some documents due to an overriding public interest against disclosure of certain information contained in those documents. In making its decision, the Respondent consulted the CSO who raised an objection to the release of the information, which the Respondent was obliged to consider in applying the public interest test. The Respondent also decided to provide view-only access to a document of the IPC, Document 38, release of which without the IPC’s consent would contravene the Copyright Act 1968 (Cth).

Hearing

The Applicant submitted at the hearing that it was important that the public understands the methodology of the GIPA Act principles, legislation and case law and has a greater understanding of the agencies’ mindset and processes in applying the GIPA Act. The Applicant submitted that having access to the CSO training materials would greatly assist the public to understand these processes and the perspectives of agencies.

The Tribunal was not persuaded that the CSO should be concerned with disseminating information about the GIPA Act to members of the public. The CSO exercised its right to appear and be heard at the hearing and submitted that it was simply not part of the mandate of the CSO to improve the public’s general understanding of the GIPA Act. Rather, this was the job of the IPC.[1]

Tribunal findings

Public interest test

The Tribunal was satisfied that the public interest considerations against disclosure outweighed those in favour of disclosure on the basis that release of the information could reasonably be expected to:

• place the CSO at a disadvantage in the market of provision of legal services related to the GIPA Act
• diminish the competitive commercial value of the training materials if the training materials were disclosed to the world at large
• cause detriment to the legitimate business, commercial, professional or financial interests of the CSO.

Copyright breach

The Tribunal noted that there are no conditions on disclosure under the GIPA Act. In the case of disclosure in response to an access application, the GIPA Act provides that it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. The Tribunal went on to note that if the Respondent was to give a hard copy or electronic version of Document 38 to the Applicant, this would effectively constitute disclosure to the ‘world at large’. Consequently, there would be no limit on dissemination of the material, and it would amount to a breach of the IPC’s exclusive right to publish the work or communicate it to the public. The Tribunal therefore held that the Respondent’s method of arranging the Applicant to access the IPC information via view-only inspection was appropriate.

Tribunal outcome

The Tribunal affirmed the Respondent’s decision that there was an overriding public interest against disclosure of the information and to provide view only access to Document