McEwan v Port Stephens Council [2021] NSWCATAD 110

McEwan v Port Stephens Council [2021] NSWCATAD 110

The correct and preferable decision was that the presumption under the GIPA Act in favour of disclosure, especially for open access information such as the Secondary Employment Register and Pecuniary Interests Register, was not displaced by the evidence or objections raised by Council or third parties. Mere privacy concerns and unsubstantiated objections lacked sufficient public interest justification to outweigh the statutory presumption for disclosure. The Council's approach of deeming silence as objection was inappropriate. Therefore, the documents in dispute were to be released to the applicant without redactions (except for information outside the scope of the application).

Parties
Applicant: Paul McEwan; Respondent: Port Stephens Council
Jurisdiction
Australia
Judgment Date
30 April 2021
Procedural Posture
Administrative Review / Merits Review Decision
Outcome
Council decision varied and otherwise affirmed; applicant to receive unredacted documents (except for information outside scope).
Legal Topics
Access to Government Information, Public Interest Considerations, Open Access Information, Personal Information, Privacy, Local Government Registers
Administrative Law Information Law Access to Government Information Public Interest Considerations Open Access Information Personal Information Privacy Local Government Registers

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 32 Party arguments 2
Sign in to unlock

Parties

Paul McEwan

Applicant

Port Stephens Council

Respondent

Procedural Posture

Administrative Review / Merits Review Decision

Legal Issues

  1. 1 Whether Council's decision to redact information from the Secondary Employment Register and Pecuniary Interests Register was justified under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) balancing public interest considerations
  2. 2 Whether the information withheld constituted 'open access information' and whether public interest against disclosure outweighed the presumption in favour of disclosure
  3. 3 Whether Council properly applied relevant provisions of the GIPA Act and Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act)

Ratio Decidendi

The correct and preferable decision was that the presumption under the GIPA Act in favour of disclosure, especially for open access information such as the Secondary Employment Register and Pecuniary Interests Register, was not displaced by the evidence or objections raised by Council or third parties. Mere privacy concerns and unsubstantiated objections lacked sufficient public interest justification to outweigh the statutory presumption for disclosure. The Council's approach of deeming silence as objection was inappropriate. Therefore, the documents in dispute were to be released to the applicant without redactions (except for information outside the scope of the application).

Court Disposition

Council decision varied and otherwise affirmed; applicant to receive unredacted documents (except for information outside scope).

Orders

  • The Decision of the Council dated 15 January 2020 is varied to provide that the documents identified at Items 1, 2 and 3-102 of the Schedule to the Decision are to be released to the applicant without redactions, within 28 days of the publication of these reasons.
  • Otherwise, affirm the Decision of the Council dated 15 January 2020, so that Order 1 above does not apply to those redactions in the Documents at Items 1, 2 and 3-102 of the Schedule to the Decision relating to information determined by Council to be outside of the scope of the applicant's amended Access Application.