FHG v Cumberland City Council [2021] NSWCATAD 379

FHG v Cumberland City Council [2021] NSWCATAD 379

Council's internal review decision was materially deficient because it failed to identify responsive information, did not properly undertake the GIPA public interest test, and Council could not impermissibly recast its refusal grounds during the Tribunal review. Council had taken an unduly restrictive approach to the access requests and had not disclosed or searched for all responsive information. Council did not discharge its burden of proving that document 14 was legally professionally privileged. Some information was conclusively protected or should be refused, including documents 1 and 6, but other documents had to be released, released with redactions, or remitted for reconsideration...

Jurisdiction
Australia
Judgment Date
18 February 2022
Procedural Posture
Administrative Review of an Internal Review Decision Under the Government Information (public Access) Act 2009 / NCAT Administrative and Equal Opportunity Division Merits Review
Outcome
Internal review decision set aside in part; access granted for some documents, refused for documents 1 and 6, other matters remitted for reconsideration, and request 5 determined as already available to the applicant.
Legal Topics
['gipa Act Access Application' 'reasonable Searches for Government Information' 'overriding Public Interest Against Disclosure' 'excluded Information' 'overriding Secrecy Laws' 'legal Professional Privilege' 'personal Information of Children' 'remittal for Reconsideration']
['administrative Law' 'government Information Access' 'privacy and Child Protection' 'legal Professional Privilege'] ['gipa Act Access Application' 'reasonable Searches for Government Information' 'overriding Public Interest Against Disclosure' 'excluded Information' 'overriding Secrecy Laws' 'legal Professional Privilege' 'personal Information of Children' 'remittal for Reconsideration']

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Procedural Posture

Administrative Review of an Internal Review Decision Under the Government Information (public Access) Act 2009 / NCAT Administrative and Equal Opportunity Division Merits Review

Legal Issues

  1. 1 ['Whether Council could change or add grounds for refusing access during the Tribunal review.' 'Whether Council had disclosed all information responsive to the access application and undertaken reasonable searches.' "Whether the O'Connell report was subject to legal professional privilege." 'Whether documents 1, 2, 3 and 4 were excluded information or otherwise subject to an overriding secrecy law.' 'Whether the public interest test justified refusing or redacting remaining documents responsive to requests 1, 2 and 3.' 'What was the correct and preferable decision for request 4 concerning financial expenditure records.' 'Whether information responsive to request 5 was already available to the applicant.']

Ratio Decidendi

Council's internal review decision was materially deficient because it failed to identify responsive information, did not properly undertake the GIPA public interest test, and Council could not impermissibly recast its refusal grounds during the Tribunal review. Council had taken an unduly restrictive approach to the access requests and had not disclosed or searched for all responsive information. Council did not discharge its burden of proving that document 14 was legally professionally privileged. Some information was conclusively protected or should be refused, including documents 1 and 6, but other documents had to be released, released with redactions, or remitted for reconsideration...

Court Disposition

Internal review decision set aside in part; access granted for some documents, refused for documents 1 and 6, other matters remitted for reconsideration, and request 5 determined as already available to the applicant.

Orders

  • ['Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 the publication or disclosure to the applicant or the public of paragraph 92 of these reasons is prohibited.' "The Tribunal sets aside the decision made on internal review by Council with respect to the Applicant's access requests numbered 1, 2 and...