Access to objections to a development application: the decision in McEwan v Port Stephens Council
The recent decision of the Appeal Panel of the NSW Civil and Administrative Tribunal (NCAT) highlights some of the issues faced by councils when access to objections to a development application are sought under the Government Information (Public Access) Act 2009 (GIPA Act).
The matter concerned Mr McEwan and his partner Ms Webb. They were seeking copies of objections made to Port Stephens Council (Council) in the context of a development application, made by them, for a privacy screen in their home in 2011.
Originally, the Council refused to provide access to the four objections on the basis that there was an overriding public interest against disclosure of the information sought.
The Council found that the disclosure of the objections should reasonably be expected to have one of more of the following effects:
- reveal an individual's personal information (cl.3(a) in Table 15 of the GIPA Act)
- 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 (cl.3(b) in Table 15 of the GIPA Act)
- expose a person to a risk of harm or of serious harassment or serious intimidation (cl.3(f) in Table 15 of the GIPA Act).
The NCAT then affirmed the Council's decision relying on the same factors and sought to rely heavily on the clause 3(f) factor.
It was uncontroversial that the Council had made public announcements in the local newspaper stating that all submissions received would be considered open access information under the GIPA Act and that they would be made available to members of the public if requested.
The decision of the Appeal Panel
The Appeal Panel allowed the appeal, set aside the decision of the NCAT and remitted the matter back to a differently constituted NCAT for redetermination.
In making its decision the Appeal Panel found that the information sought was "open access information" and that the NCAT needed to start with the position that this was an important factor in favour of disclosure which was additional to other relevant factors in favour of disclosure, including the general public interest in favour of disclosure provided for in section 12(1) of the GIPA Act.
The Appeal Panel found that only two of the documents contained anything that was capable of amounting to health information and these references (which were expressed in very general terms) made up a very small part of these two documents. It would be a simple matter to have these parts redacted if that was thought necessary or desirable.
The Appeal Panel found that in making its decision the NCAT either failed to provide adequate reasons or failed to consider the material before it.
The Appeal Panel also found that the NCAT had failed to give adequate reasons for its decision that that the clause 3(f) factor had been established, and for those reasons the decision should be set aside.
Implications of the decision
Where councils are asked to consider whether to disclose open access information, the fact that the information is identified as open access information is an additional factor in favour of disclosure. The starting point should be that such information should be disclosed.
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