Australia: NSW Government Bulletin - 26 July 2017 - Part 1: Rowell v Department of Family and Community

Last Updated: 28 July 2017
Article by Georgia Appleby

Most Read Contributor in Australia, July 2017

Rowell v Department of Family and Community Services [2017] NSWCATAD 221

This decision concerns the NSW Government's sale of historic terraces at Millers Point in Sydney which was a controversial asset disposal program when it was announced in 2008. The first tranche of sales were of 99 year leasehold interests. The later tranche was sold as freehold from 2014. The Department of Family and Community Services (FACS) has more recently offered the leasehold owners the opportunity to convert their interests to freehold.

It is in this context that an application came before the Tribunal brought by an owner of a 99 year leasehold interest in a property at Millers Point (the Owner) who had applied to FACS under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) seeking access to information in relation to sales under the 99 year leasehold program.

The Owner primarily sought this information on the basis that she wanted to ensure that the lease contracts were administered in a consistent, fair and transparent manner.

Multiple GIPA applications had been made and substantial material had already been released to the Owner.

The Owner questioned the adequacy of the searches conducted by FACS and also challenged the decision of FACS to withhold or redact certain information on public interest grounds in accordance with section 14 of the GIPA Act.

FACS contended that no further information should be released to the owner as disclosure would result in:

  1. the revealing of personal information
  2. an unreasonable diversion of resources
  3. would prejudice the effective exercise of FACS' functions.

Were the searches reasonable and adequate?

Section 105 of the GIPA Act provides that the onus is on the agency to justify its decision to either disclose or withhold certain information. FACS provided evidence in regard to the searches that were undertaken and the practices of FACS in order to substantiate its claim that further information is unlikely to exist.

The Owner contended that the searches undertaken were too narrow and that given the fact that the records are stored electronically, a broadening of search terms was likely to result in further documents.

The Tribunal held that while the initial searches conducted by FACS were too narrow and therefore inadequate, this had been remedied by FACS conducting further searches which revealed further information which was disclosed to the Owner. As these further searches had already been conducted, the Tribunal was not convinced that additional searches would likely result in any additional information coming to light.

Further, the Tribunal held that the Owner failed to substantiate her claim that there was a deliberate attempt on the part of FACS to alter, destroy or conceal records in all attempt to prevent the release of information to the Owner.

Would further disclosure reveal personal information?

FACS argued that disclosure of further information or the provision of un-redacted copies of certain documents could reasonably be expected to reveal an individual's personal information, namely details of the individual's bonds and works information. In this way, FACS contended that it was not the names of the individuals which were personal information, as this was already publicly available, but the bonds and works information of those people who would be identifiable by their addresses.

The Tribunal agreed with FACS and held that the release of such information could reasonably be expected to reveal information about the private affairs of people which would not otherwise be available to the public and which has little relevance to the Owner's stated objectives. For this reason, the public interest in non-disclosure was said to outweigh the public interests in disclosure.

Would disclosure involve in an unreasonable diversion of resources?

The Tribunal considered that section 54 of the GIPA Act required consultation with third parties prior to the release of personal information. As the information sought by the Owner contained personal information relating to 32 leasehold owners, FACS argued that the time and costs to the agency in consulting all 32 parties would result in an unreasonable and substantial diversion of the agency's resources.

As this evidence was unchallenged by the Owner, the Tribunal found that given the circumstances surrounding the necessary consultation, the release would result in an unreasonable diversion of FACS' resources.

Would disclosure prejudice the effective exercise of FACS' functions?

FACS is a body responsible for owning and managing NSW Government social housing assets with the goal of providing more houses for people in need. Consequently, FACS submitted that disclosure of information as requested by the Owner would necessarily reveal commercially valuable information relating to budgetary and financial figures which would prejudice the ability of FACS to engage in negotiations.

Given that the disposal and utilisation of public land is an integral function of FACS, the Tribunal held that the public interest against disclosure should be given significant weight.

Additionally, the Tribunal noted that a mere assertion of maladministration or corruption within an agency is insufficient to warrant disclosure where the effects of such disclosure would be significantly against the public interest.

It should be noted that the Owner appeared in person in this matter. A different result may have been achieved had the Owner addressed some of the issues in evidence, particularly with regard to unreasonable diversion of resources.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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