Clancy v Clarence Valley Council

Cases Cited: Darley v City of Parramatta [2025] NSWSC 990
DDL v Mid-Western Regional Council [2018] NSWCATAD 2
Grande v Lismore City Council [2024] NSWCATAD 33
Hurst v Wagga Wagga City Council [2011] NSWADT 307
Katsianas v George’s River Council [2020] NSWCATAD 213
Katsifis v Canterbury Bankstown Council [2026] NSWCATAD 67
Newcastle City Council v Newcastle East Residents Act Group [2018] NSWCATAP 259
Nichols v Singleton Council (No 2) [2011] NSWSC 1517
Transport for NSW v Searle [2018] NSWCATAP 93

Texts Cited: Procedures for the Administration of the Model Code of Conduct for Local Councils in NSW (2020)

Category: Principal judgment

Parties: Greg Clancy (Applicant)
Clarence Valley Council (Respondent)

Representation: Solicitors:
J Ryan, Stringybark Legal (Applicant)
T Ward, Pikes and Verekers Lawyers (Respondent)

File Number(s): 2025/00374932

Publication restriction: Pursuant to section 64(1)(c) and/or (d) of the Civil and Administrative Tribunal Act 2013 any confidential evidence filed with the Tribunal or given in a confidential hearing pursuant to section 107 of the Government Information (Public Access) Act 2009, is not to be disclosed without further order of the Tribunal.
Those paragraphs or parts of the paragraphs of these reasons identified as [Not for publication] are not to be disclosed to the Applicant or the public without further order of the Tribunal.

REASONS FOR DECISION

Overview

1. This is a review application under the Government Information Public Access Act 2009 (NSW) (GIPA Act). The review concerns a decision by the respondent, the Clarence Valley Council, to release two reports relating to a code of conduct investigation into the applicant, Mr Greg Clancy. He is a Councillor of the Clarence Valley Council and opposes the release of the reports.

2. The information in dispute are reports dated 6 September 2023 and 6 November 2023, which were attached to confidential minutes of Council meetings dated 24 October 2023 and 28 November 2023. The reports have not been publicly released and the complainant (the access applicant) sought access to this information by application made on 9 October 2024.

3. On 19 November 2024, the Council decided to provide access to the information. Mr Clancy sought an internal review of this decision, which was subsequently affirmed on 9 January 2025. He then sought external review by the Information Commissioner, who recommended that the Council reconsider its decision. On 1 September 2025, the Council decided to provide partial access to the information requested by the access applicant, with redactions. This is the decision Mr Clancy seeks to review.

4. Mr Clancy contends that the reports should not be disclosed, even with redactions, as there is an overriding public interest against disclosure in the circumstances of this case. He says the redacted reports will not ameliorate the potential harm from disclosure – it is public knowledge that he was the subject of a code of conduct investigation. Mr Clancy contends that the reports should not be disclosed because they were part of a confidential internal process for dealing with complaints and they contain false or unsubstantiated allegations that are defamatory. He further contends that the investigation was flawed and the recommendations made were not accepted by Council at its meeting of 28 November 2023.

5. The Council contends that the reports were the result of an independent investigation process under the Council’s code of conduct. The findings were substantiated by the investigator, and it was not the role of the Council to act as an alternate arbiter of fact. Disclosure of the information would not undermine the effective operation of the code of conduct investigation process, and it is in the public interest that the reports be disclosed in the interests of transparency and accountability.

6. The Tribunal has jurisdiction to undertake administrative review of this decision under s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

7. Confidentiality orders under s 64 of the NCAT Act were made before and in the hearing to give effect to s 107 of the GIPA Act. Section 107 provides that in determining an application for review, the Tribunal is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. I have found there is an overriding public interest against disclosure of key aspects of the September and November 2023 reports and that it is not possible to release parts of those reports without disclosing the matters the subject of dispute. I have also found that the content of the reports is so interrelated with the disputed findings that it is not possible in this case to release redacted reports without the reports becoming nonsensical, materially compromising the meaning and content of the reports.

8. To ensure compliance with s 107 of the NCAT Act, the reasons have been drafted, where possible, so as not to disclose the identity of individuals involved in the dispute and by reference to the general, rather than specific, allegations or factual matters. The reasons have been drafted as confidential and open versions.

9. Mr Clancy has had access to the September and November 2023 reports as part of the investigation and Council review process but has not been provided with the confidential version of these reasons, which refer to the contents of those reports, given the provisions of s 107 of the GIPA Act.

10. In essence, the disputed information relates to findings in a code of conduct investigation that had arisen from disputes between Councillors about the conduct of Council business. There is a confidential process for undertaking code of conduct investigations, but this does not exclude disclosure of information under the GIPA Act and questions about disclosure fall for determination under the usual principles governing disclosure of government information. These principles recognise the importance of open and accountable government, where access to government information is restricted only when there is an overriding public interest against disclosure. It is not the role of the Tribunal in conducting merits review of a GIPA application to also conduct merits review of the investigation or the validity of the findings. This is for judicial review. Nor do I accept that the Council, if it does not accept recommendations, is the arbiter of fact on these matters.

11. Rather, the Tribunal must evaluate the weight of code of conduct findings to form a view about whether the party has discharged the onus to establish that disclosure of the information could reasonably be expected to have the contended effect (as set out in the GIPA Act) such that there is a public interest against disclosure. This must then be balanced against the public interest considerations in favour of disclosure.

12. I have decided to set aside the decision under review and substitute a decision to refuse to provide access to the information in dispute because I am satisfied there is an overriding public interest against disclosure of the information in the circumstances of this case.

13. My reasons follow.

Background

14. Mr Clancy is a resident of in the Clarence Valley Council area and has been a Councillor since 2016. Following a complaint made against Mr Clancy by another Councillor, a code of conduct investigation was undertaken, and a report was completed in September 2023.

15. The report was provided to the Councillors at an ordinary Council meeting on 24 October 2023. A supplementary report was requested by the Council as a result of this meeting and the report, which was dated 6 November 2023, was provided to the Council. Both the September and November 2023 reports were considered at an ordinary Council meeting on 28 November 2023. The Council resolved:

That Council

1. note the supplementary report requested in October 2023 (Attachment A)

2. note the code of conduct reviewer’s report and the recommendation made (Attachment B)

3. under clause 7.60 of the procedures, Council does not resolve to adopt the investigators recommendation to impose a sanction on Councillor Clancy on the basis that the investigator has not substantiated any of the allegations

4. under these circumstances, Council’s complaints Coordinator pursuant to clause 7.61 of the procedures, notify the Office of Local Government of Council’s decision and the reasons for it.

16. Four Councillors voted in favour of the resolution not to adopt the report and two voted against the resolution. Mr Clancy and the two Councillors who made the complaints against him did not vote at the meeting. Such a resolution must be notified to the Office of Local Government (OLG). The OLG has a role in overseeing and working with Councils under the Local Government Act 1993 (NSW) (LGA).

17. This resolution was initially confidential but on the same day the resolution was made the Councillors voted that the resolution be made public.

18. As such, it is public knowledge that there was a code of conduct complaint and investigation against Mr Clancy and that the investigator made recommendations to impose a sanction against Mr Clancy. It is also public knowledge that the Council, by majority, resolved not to accept the recommendations on the basis that the investigator “has not substantiated any of the allegations”.

19. Mr Clancy disputes the findings and recommendations made in the investigation reports. While neither report has been made public, Mr Clancy is aware of the content of the reports because he was provided with copies as part of the procedural fairness process undertaken by the investigator.

20. Mr Peter Johnstone, Councillor and Mayor from September 2023 to September 2024, provided an affidavit to the Tribunal in support of Mr Clancy’s application. He states that he voted not to accept the investigator’s recommendation to impose a censure on Mr Clancy because it was his view the recommendation had not been substantiated. He states that after receiving and reading the investigation report “it became apparent to him that it contained errors and inconsistencies”. He was also concerned that not all Councillors had been interviewed as part of the investigation process undertaken by the investigator.

21. The reports concern allegations that Mr Clancy breached the code of conduct by, among other things, speaking publicly against an officer of the Council and by inappropriately circulating Council documents. Mr Clancy denies these claims.

22. Neither party provided evidence of what, if any, action was taken by the OLG following the notification of the decision made by the Council on 28 November 2023. However, it is apparent from correspondence provided to Mr Clancy dated 16 December 2025 that the various disputes between Councillors and interaction with staff was a matter of concern to OLG and there was public knowledge in the community about the disputes. According to the OLG, the disputes were having community impacts through “loss of public trust, allegations of inadequate consultation, and escalating disorder at Council meetings”.

23. This is relevant background to the current review.

24. On 23 July 2025, the Information Commissioner recommended that the Council reconsider its decision by taking into account guidance provided in the letter, both in relation to any reconsideration of the decision and for any future decisions made under the GIPA Act. The Information Commissioner stated that it was unclear whether the Council had met its obligations of conducting an internal review as the reasons provided appeared to mirror the reasons provided at first instance. It was observed that the notice of decision provided some explanation for why the release of the information would be weighed in favour of the public interest for disclosure but remained largely silent on the relevance of the public interest against disclosure identified, as well as the weight attributed to each of the public interest considerations for and against. On balance, the Information Commissioner was not satisfied that the decision to provide access was justified and therefore recommended that the Council reconsider its decision.

Decision under review

25. Following the recommendations of the Information Commissioner, an officer of the Council made the decision dated 1 September 2025 for the partial release of information. The decision identified as considerations against disclosure being the release of personal information about third parties, privacy issues and the risk of reputational damage from unsubstantiated allegations. The decision also referred to secrecy provisions clauses but for the reasons later outlined in this decision, this appears to be in error. The references in the decision are consistent with public interest considerations against disclosure under the GIPA Act relating to “responsible and effective government”, relevantly, prejudice to the supply of confidential information, prejudice to the effective exercise of functions and prejudice to investigative methods and procedures.

26. The delegate noted that the report contained names and contact details of complainants, witnesses and Council officers who were not the subject of the complaint. This was personal information. The delegate was satisfied that there were strong privacy expectations applying to complainants and witnesses in the code of conduct process. This weighed against disclosure. However, the delegate found that these risks could be mitigated by redacting names and identifying details. The delegate noted that the allegations made were sensitive and, while there was risk of harm or unfair exposure if the report was released, the delegate was satisfied that the allegations were substantiated on the balance of probabilities. This public interest consideration did not weigh against disclosure.

27. In summary, the delegate found that the weight of considerations in favour of disclosure, in particular the need for accountability where allegations of misconduct are concerned, far outweighed the identified considerations against disclosure. It was proposed to release the reports with redactions for names of the Councillors and the staff referred to in the report.

28. The information is referred to in the decision as “confidential council reports October 2023” and “confidential council reports November 2023”. The first report is a reference to the September 2023 report of the investigator which was provided to the council for its October 2023 meeting and the second report is a reference to the November 2023 report of the investigator which was provided to the council for its November 2023 meeting. For ease of reference, I have referred to the information as the “September 2023” report and the “November 2023” report or simply as the “September and November 2023 reports” in these reasons.

Statutory Framework

29. The GIPA Act was introduced in 2009 to facilitate public access to government information.

30. Section 3 provides that the object of the GIPA Act is to open government information to the public by authorising and encouraging the proactive public release of government information by agencies, giving members of the public an enforceable right to access government information and providing that access to government information is restricted only when there is an overriding public interest against disclosure.

31. Section 5 of the GIPA Act states that there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. A person who makes an access application for government information has a legally enforceable right under s 9 to be provided with access to the information unless there is an overriding public interest against disclosure of the information.

32. Section 12(1) provides that there is a general public interest in favour of the disclosure of government information. Examples of public interest considerations in favour of disclosure set out in the Note to s 12 are:

“Note.

The following are examples of public interest considerations in favour of disclosure of information--

(a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance.

(b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public.

(c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.

(d) The information is personal information of the person to whom it is to be disclosed.

(e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct.”

33. Section 13 sets out how the public interest test must be assessed and states:

“There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.”

34. Section 14 of the GIPA Act contains the public interest considerations against disclosure.

35. Section 14(1) provides that it is to be conclusively presumed there is an overriding public interest against disclosure of any of the government information described in Schedule 1. Schedule 1 does not apply in this case. This is not in dispute.

36. Section 14(2) provides that the public interest considerations listed in the Table to the section are the only other considerations that may be taken into account as public interest considerations against disclosure. The Table to s 14(2) enumerates seven different grounds that may be taken into account as public interest considerations against disclosure, two of which have relevance to this case and are referenced in the reviewable decision and the submissions made. The relevant public interest considerations are those set out in clause 1, R**esponsible and effective government and clause 3, Individual rights, judicial process and natural justice.

37. In the decision dated 1 September 2025, the delegate referred to clauses 6(b) to (f), however, this reference appears to be in error, firstly, because there is no reference to subclauses 6(b) to (f) in the Table and the references in the decision are consistent with clauses (1)(d), (f) and (h) of the Table. Secondly, because cl 6 relates to secrecy provisions in “any other Act or statutory rule … that prohibits the disclosure of information”. As noted by the delegate, disclosure under the GIPA Act is contemplated by the LGA and is therefore not prohibited.

38. Given the commentary in the decision, which I have taken to be intended to be a reference to cl 1 of the Table, and having regard to the submissions made by the parties, it appears that the relevant public interest considerations against disclosure which are subject to dispute are clauses (1)(d), (f) and (h) − Mr Clancy makes submissions in general terms as to why code of conduct investigations should remain confidential − and clauses 3(b) and (b), but most particularly cl 3(e), which was the primary focus of disputed contentions in the submissions and at the hearing.

39. Clause 1(d), (f) and (h) provide:

Responsible and effective government

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)—

…………..

(d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency’s functions,

…………….

(f) prejudice the effective exercise by an agency of the agency’s functions,

…………………….

(h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed).

40. Clause 3 relevantly states:

There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects—

(a) reveal an individual’s personal information,

(b) 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,

…..

(e) reveal false or unsubstantiated allegations about a person that are defamatory,

41. Personal information is defined in Sch 4, cl 4 and means information or an opinion about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion.

42. Section 15 of the GIPA Act sets out the principles that apply to agencies and, relevantly, to the Tribunal, when making a determination as to whether there is an overriding public interest against disclosure of government information. Decision-makers must make public interest determinations in accordance with the following principles:

(a) Agencies must exercise their functions so as to promote the object of this Act.

(b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

43. Section 54 imposes an obligation on an agency to consult with a third party before providing access to the information if that third party may reasonably be expected to have concerns about the disclosure of the information and those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information.

44. Section 58(1) provides that applications for review are to be decided by the agency: deciding to provide access to the information sought (subs (a)); deciding that the information is not held by the agency (subs (b)); deciding that the information is already available to the applicant (subs (c)); deciding to refuse the application because there is an overriding public interest against disclosure (subs (d)); deciding to refuse to deal with the application (subs (e)) and deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact (subs (f)).

45. In this case, the decision made by the Council was made under s 58(1)(a) of the GIPA Act. The Council decided on partial release and redacted part of the information under s 74. Section 74 provides that an agency can delete information from a copy of a record to which access is to be provided in response to an access application. The redactions made included the names of the complainants, the respondent to the complaint (Mr Clancy), the name and reference to references to Council staff and officers and other witnesses and the Councillors who were interviewed and those who were approached but did not agree to be interviewed.

46. Section 80 of the GIPA Act sets out the decisions of an agency which are “reviewable decisions” for the purposes of Part 5 of the GIPA Act. A decision to provide access or refuse to provide access to information in response to an access application, is a reviewable decision: s 80(d).

47. Section 89 provides that a person aggrieved by a reviewable decision is entitled to have the decision reviewed by the Information Commissioner. The Information Commissioner may recommend that the agency reconsider the decision and make a new decision as if the decision reviewed had not been made (s 93 GIPA Act).

48. Under s 100 of the GIPA Act, a person who is aggrieved by a reviewable decision may apply to the Tribunal for an administrative review of the decision under the Administrative Decisions Review Act 1997 (NSW) (ADR Act). Mr Clancy was aggrieved by the decision and has sought administrative review.

49. Section 105 provides that the onus is on the agency to justify decisions made in respect of access under the GIPA Act. However, s 105(2) relevantly provides:

If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review.

50. Section 107 sets out the procedure for dealing with public interest considerations when the Tribunal undertakes administrative review and provides that the Tribunal is to ensure it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. The Tribunal must receive evidence and hear arguments in the absence of the public, the review applicant and the applicant’s representative if, in the opinion of the Tribunal, it is necessary to do so to prevent the disclosure of information for which there is a public overriding public interest against disclosure.

51. In determining an application for an administrative review, the Tribunal must make the “correct and preferable” decision based on the material before it at the time of the decision (s 63(1) ADR Act). Section 63(3) provides that the Tribunal may decide to affirm or vary the decision or set aside the decision under review and make a decision in substitution or remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.

Application for review

52. In his application for review, Mr Clancy states that he objects to the decision on grounds that the Council did not conduct third party consultation with him as required under the GIPA Act and in line with the recommendations made by the Information Commissioner. He further contends that the Council did not conduct the balancing exercise properly and misconstrued the code of conduct. He makes submissions about the confidentiality framework for code of conduct investigations and the prejudice to him if what he says are unsubstantiated allegations are publicly disclosed. Mr Clancy expanded on these contentions in his written and oral submissions at the hearing.

53. Given that this is central to the dispute, it is useful to summarise the relevant code of conduct provisions and the information in dispute, including the general nature of the allegations in respect of which Mr Clancy contends there is an overriding public interest against disclosure.

Code of conduct investigations

54. The Council has a code of conduct, made under s 440 of the LGA and the Local Government (General) Regulation 2021 (NSW) (the Regulation). It sets out the minimum standards of conduct for Council officials and incorporates the provisions of the ‘Model Code of Conduct’ under the Regulation (the Model Code). The Model Code sets out the procedures to be followed where a complaint is made. The failure of a Councillor to comply with the applicable requirements of a code of conduct will be “misconduct” under the LGA (s 440F LGA).

55. The general conduct obligations for Councillors are set out in Part 3 the Council’s code of conduct. In summary, a Councillor must not conduct themselves in a manner that is likely to bring the Councillor or other Council officers into disrepute (cl 3.1(a)), is contrary to the statutory requirements or the Council’s administrative requirements or policies (cl 3.1(b)), is improper or unethical (cl 3.1(c)), is an abuse of power (cl 3.1(d)), causes, comprises or involves intimidation or verbal abuse (cl 3.1(e)), involves the misuse of the Councillor’s position to obtain a private benefit (cl 3.1(f)) or constitutes harassment or bullying behaviour under the code or is unlawfully discriminatory (cl 3.1(g)).

56. Other relevant provisions of the code of conduct include clauses 3.2 (the duty to act lawfully and honestly and to exercise a reasonable degree of care and diligence), 3.8 (not to engage in bullying behaviour), 7.6 (inappropriate interactions with Council staff), 8.9 (access and disclosure of Council information), 8.11 (integrity and security of confidential information, improper use) and 8.12 (compliance with privacy principles and legislation).

57. Complaints under the code of conduct are to be managed in accordance with the procedures for the administration of the Model Code of Conduct for local Councils in New South Wales, as prescribed under the Regulations.

58. Under the administrative framework for the Model Code, the Council must establish a panel of conduct reviewers (investigators) who must, as a minimum, meet the requirements set out in cl 3.5 of the Model Code. The reviewer must have an understanding of local government and knowledge of the investigative processes, including, but not limited to, procedural fairness. The General Manager must appoint a member of the staff, the Council or another person as a complaints coordinator. The General Manager must not undertake the role of complaints coordinator. The role of the complaints coordinator is, amongst other things, to coordinate the management of complaints made under the Council’s code of conduct (refer clauses 3.17-3.21).

59. Part 7 sets out the procedure for investigations undertaken by the investigator. Investigations are to be undertaken in the absence of the public and in confidence (cl 7.16), investigators must make any such inquiries that may be reasonably necessary to establish the facts of the matter (cl 7.17) and, in preparing a draft report, the investigator must give the respondent (being the person being investigated) an opportunity to address the investigator on the matter being investigated (cl 7.11). Where the respondent fails to make a written submission in relation to the draft report within the period specified by the investigator, the investigator may proceed to prepare and issue their final report without receiving such submissions (cl 7.31).

60. The investigator must prepare a final report in relation to the matter, unless the investigation is discontinued (cl 7.33). The investigator must make findings of fact in relation to the matter and make a determination about whether the conduct being investigated either constitutes a breach of the code of conduct or does not constitute a breach (cl 7.35). The final report must provide reasons for the determination (cl 7.35). Clause 7.46 provides that the role of the Council in relation to a final investigation report is to impose a sanction if the investigator has determined there has been a breach of the code of conduct. The Council is to close its meeting to the public to consider the final investigation report (cl 7.47).

61. Prior to imposing a sanction, the Council must provide the respondent with an opportunity to make a submission to the Council (cl 7.49). Once the respondent has made any submission, they must absent themselves from the meeting and take no part in any discussion or voting in the matter (cl 7.50). The Council may by resolution request the investigator to make additional inquiries and/or provide additional information to it in a supplementary report (cl 7.52). The Council may defer consideration of the matter pending receipt of a supplementary report (cl 7.53). After considering the report, the Council may, by resolution, impose sanctions on a respondent, including censure under s 440G of the LGA (cl 7.59). Clause 7.60 provides that the Council is not obliged to adopt the investigator’s recommendation and, where this is the case, the Council must resolve not to adopt the recommendation and state in its resolution the reasons for its decision. The OLG must be notified of the Council’s decision and the reasons for the decision (cl 7.61). Part 8 of the Model Code provides for oversight of code of conduct by the OLG.

Information in dispute – September and November 2023 reports

62. The September 2023 report particularised seven complaints that were investigated at [2.2]. Those complaints were that:

63. [NOT FOR PUBLICATION]

64. [NOT FOR PUBLICATION]

65. [NOT FOR PUBLICATION]

66. [NOT FOR PUBLICATION]

67. [NOT FOR PUBLICATION]

68. [NOT FOR PUBLICATION]

69. [NOT FOR PUBLICATION]

70. According to the report [2.3] it was considered that the complaint may, if proven, give rise to a breach of clauses [NOT FOR PUBLICATION] of the Council’s code of conduct.

71. The investigator incorporated and restated some of the complaints into two key allegations, Allegations 1 and 2. Allegations 3 and 4 are allegations that the conduct alleged in Allegation 1 constitutes misconduct. Allegations 5 and 6 are allegations that the conduct alleged in Allegation 2 constitutes misconduct.

72. The investigator refers to and makes findings in relation to “Allegations 1, 3 and 4” as follows:

6.1 The first allegation against Councillor Clancy is [NOT FOR PUBLICATION].

6.2 Allegations 3 and 4 are that the conduct alleged in allegation 1 constitutes misconduct and in particular breaches of clauses 3.1 (a), (b), (c), (d), (e), (g), 3.2 and 3.8 of the Council’s Code of Conduct.

66. The investigator finds that Allegations 1 is established and further finds that Allegations 3 and 4 are established because the conduct in Allegation 1 constitutes “misconduct” and in was in breach of the clauses of the code of conduct identified in [6.2]. The investigator referred to the evidence to support the findings at [6.3] − [6.30] and the basis for why the conduct was said to constitute misconduct at [6.31] − [6.37].

67. The Allegation 1 appears to incorporate complaint 5, and possibly complaints 6 and 7.

68. The investigator refers to and makes findings in relation to “Allegations 2, 5 and 6” as follows:

6.38 The second allegation is that Councillor Clancy [NOT FOR PUBLICATION.

6.39 Allegations 5 and 6 are that the conduct alleged in allegation 2 constitutes misconduct and in particular breaches clauses 7.6 (a), (h), 8.9 (a) and (d), 8.10, 8.11 (a), (b), (c), (d), (f), 8.12 (a) and (c) of the Council’s Code of Conduct.

69. The investigator finds that Allegation 2 is established and further finds that Allegations 5 and 6 are established because this conduct constitutes “misconduct” and in was in breach of the clauses of the code of conduct identified in [6.39]. The evidence said to support the findings are set out in [6.40] to [6.66] of the report. The basis for the conclusion with the conduct was “misconduct” is set out in [6.67] − [6.72].

70. Allegation 2 appears to incorporate complaints 1, 3 and 4. However, that part of the allegation to the effect that Mr Clancy [NOT FOR PUBLICATION] was not the subject of the original complaints.

71. The overall findings are set out in [7.1] and [7.2]. In summary, the investigator is satisfied on the balance of probabilities that Allegations 1 and 2 were sustained, leading to the findings that Mr Clancy had breached various clauses of the Council’s code of conduct. It was recommended the Council resolve to formally censure Mr Clancy for breaches of the clauses specified under section 440G of the LGA.

72. At the Council meeting on 24 October 2023, the Council resolved to defer consideration of the matter pending the receipt of a supplementary report from the investigator which should include reviewing consideration of correspondence provided by Mr Clancy’s solicitor dated 22 October 2023 and any other questions Council may have regarding the code of conduct report as per cl 7.52(a) of the procedures for the administration of the Model Code. Five Councillors voted in favour of this resolution and one Councillor voted against. It was noted that the resolution should remain confidential until the process was completed.

73. The investigator provided a supplementary report dated 6 November 2023 where the matters raised in the correspondence of Mr Clancy’s solicitor and the questions and criticisms raised by the five Councillors who did not support the September 2023 report were considered.

74. In summary, the investigator did not resile from the findings in the September 2023 report.

75. Mr Clancy says that the November 2023 report repeated a number of the allegations in the September 2023 report and made unsubstantiated findings about other Councillors. He denies complaint number 1, which is referred to in part as Allegation 2, and says that [NOT FOR PUBLICATION]. In relation to complaints 5, 6 and 7, which are referred to in Allegation 1 allegation, Mr Clancy [NOT FOR PUBLICATION].

Submissions

Mr Clancy’s submissions

76. Mr Clancy submits that disclosing the reports could reasonably be expected to reveal false or unsubstantiated allegations about him that are defamatory, thereby engaging cl 3(e) as a compelling public interest consideration against disclosure. He says that the purported findings of the investigation reports were, amongst other things, that his conduct was [NOT FOR PUBLICATION]. These statements are defamatory and they are unsubstantiated. There are also unsubstantiated allegations made in the supplementary report against other Councillors that should not be disclosed. Mr Clancy submits that these statements are defamatory of the other Councillors.

77. Mr Clancy disagrees with the conclusion of the delegate that the allegations in the reports were substantiated. He says that it is unnecessary for the Tribunal to form a view about whether the allegations are substantiated by examining the evidence and conclusions in the reports because the Council, by majority resolution, considered the allegations were not substantiated. He submits that the Council is the final arbiter of fact in relation to the complaints: Darley v City of Parramatta [2025] NSWSC 990 (Darley). In the alternative, Mr Clancy says that the Tribunal should examine the reports and his submissions about its shortcomings to form its own view about whether the allegations and “purported findings” are substantiated.

78. It is submitted that this public interest consideration is established and weighs strongly against disclosure, which would result in reputational damage and harm to Mr Clancy. Redacting the confidential reports and minutes does not resolve the issue. This is because the 28 November 2023 minutes were made public and it is obvious Mr Clancy was the subject of the complaint. It is submitted that significant weight should be given to the reputational damage of defamatory allegations.

79. Mr Clancy further submits that the implementation of the code of conduct is a mechanism to deal with complaints about Councillors. Council does not publish full reports and the fact that the procedures for the administration of the Model Code provides for confidentiality, supports the policy that final investigation reports should not be published. It is submitted that this may discourage Councillors and other witnesses from providing evidence to investigators in the future and generally would prejudice the effective exercise of Council functions. This also weighs against disclosure.

80. It is submitted that these matters weigh against disclosure and outweigh the public benefit of such disclosure.

Respondent’s submissions

81. The Council submits that the onus is on Mr Clancy to demonstrate that there is an overriding public interest against disclosure under s 105(2) of the GIPA Act. He must first establish that the information sought to be disclosed contains allegations which are either false or unsubstantiated and are defamatory (Hurst v Wagga Wagga City Council [2011] NSWADT 307 and DDL v Mid*-W**estern Regional Council* [2018] NSWCATAD 2).

82. The Council submits that the role of the investigator under the code of conduct is to independently determine whether or not the allegations made in the complaint are substantiated. It is the role of the investigator, not the Council, to make findings of fact and to determine whether there has been a breach of the code. As observed by the Tribunal in Katsianas v George*’*s River Council [2020] NSWCATAD 213, Hurstville City Council did not have authority to make a finding that the allegations were not made out, and it was not open to argue that allegations were not substantiated when the investigator had made findings about those matters.

83. The Council further submits that the resolution of 28 November 2023 does not, of itself, establish that the allegations were unsubstantiated. The investigator was the person who had authority to investigate the matter and to prepare a report. It is not open to the Tribunal to review those findings as part of a GIPA application. This is not the appropriate avenue for merits review or for challenges to the findings and recommendations made by an investigator in respect of a code of conduct investigation. There are rights of review by an aggrieved Councillor who disputes a sanction and the OLG has independent oversight. The Tribunal should be satisfied that the allegations contained in the final report are not false or unsubstantiated because the reports were compiled by an experienced investigator who undertook a thorough investigation, interviewed a number of witnesses and prepared two reports, including the final report in accordance with the process set out in the Model Code. Mr Clancy was provided with an opportunity to participate in the investigation but declined to do so.

84. It is submitted that the release of the information would be consistent with the objects of the GIPA Act and, particularly the public interest considerations in favour of disclosure as set out in section clause in s 12. The Council rejects the contention that release of the reports, as redacted, would undermine code of conduct investigations or the integrity and effectiveness of such investigations.

Consideration

The issues

85. Having regard to the submissions of the parties and the material before the Tribunal, the issues for determination are:

86. Whether the disclosure of the reports dated September and November 2023 could reasonably be expected to reveal false or unsubstantiated allegations about Mr Clancy that are defamatory.

87. Whether the disclosure of the reports could reasonably be expected to prejudice the supply to the Council of confidential information that facilitates the effective exercise of that the Council’s functions, prejudice the conduct, effectiveness or integrity of the code of conduct investigation processes or otherwise prejudice the effective exercise by the Council of its functions.

88. What are the public interest considerations in favour of disclosure?

89. How should the considerations for and against disclosure be balanced?

Could disclosure reasonably be expected to reveal false or unsubstantiated allegations about Mr Clancy that are defamatory?

86. It is not in dispute that the confidential reports and minutes of the Council meetings could reasonably be expected to reveal personal information about Mr Clancy, the complainants, the other Councillors and Council staff involved in the various disputes which were the subject of the investigation. It is accepted that this weighs against disclosure, but it is also contended by the Council that redaction of the report will mitigate against the risks of disclosure.

87. Mr Clancy says this will not protect him from the harm and reputational damage he may suffer from the disclosure of false or unsubstantiated allegations that are defamatory.

88. Clause 3(e) provides that there is a public interest consideration against disclosure if the disclosure of the information “could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory”. There are several aspects to this consideration. As provided in the chapeau to cl 3, it must be established that disclosing the information “could reasonably be expected” to have the contended effect, of which there are two aspects – “false or unsubstantiated” allegations about a person that are “defamatory”. Clause 3(e) is not directed to “false or unsubstantiated” allegations alone, they must also be defamatory. Conversely, allegations that are defamatory but not “false or unsubstantiated” will not engage cl 3(e), although it is difficult to conceive a circumstance where allegations that are substantiated are defamatory. Truth or substantial truth is a complete defence to an action for defamation.

89. Mr Clancy bears the onus of establishing cl 3(e) under s 105(2) of the GIPA Act. He must establish that disclosure of the reports could reasonably be expected to have the contended effect of revealing allegations about him that are false or unsubstantiated and defamatory.

90. As stated by the Appeal Panel in Transport for NSW v Searle [2018] NSWCATAP 93 at [68]:

The words “could reasonably be expected” are to be given their ordinary meaning. They require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that disclosure would have the relevant effect…

.. It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way.

[citations omitted]

91. On the question of how evidence relied on should be evaluated, the Appeal Panel in Newcastle City Council v Newcastle East Residents Act Group [2018] NSWCATAP 259 at [59] stated:

59. Based on these authorities when considering the evidence on which it is asserted that disclosure “could reasonably be expected” to have a particular effect, the following principles should be kept in mind:

(1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient;

(2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect;

(3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses.

92. In the recent case of Katsifis v Canterbury Bankstown Council [2026] NSWCATAD 67, the Tribunal observed at [68]:

Thus, something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived

93. In Grande v Lismore City Council [2024] NSWCATAD 33, the Tribunal explained:

65. Whether information could reasonably be expected to cause this prejudice is a question of fact to be determined on the material before the Tribunal. However, the Table to s 14 considerations are to be understood as being of a systemic character. It is thus not necessary for the agency to prove in a positive sense that specific information will have the asserted effect, rather, the agency’s onus is discharged if it is established that the information is of a particular character, and that character of information is likely to have the asserted effect: Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWCATAP 259 at [26]; Transport for NSW v Searle [2018] NSWCATAP 93 at [61]. However, this is a granular not a global analysis. It requires consideration of each item of information where the public interest against disclosure is asserted: Destination NSW v Taylor [2019] NSWCATAP 123 at [69].

94. These cases, which explain how the ordinary meaning of the words in the chapeau should be construed and applied, provide guidance on the evidentiary burden required to establishing the contended effect. It is unnecessary to establish the existence of the contended effect on the balance of probabilities but rather to establish that the disclosure of the information could reasonably be expected to have the contended effect. There is a subtle but practical difference, as observed in Grande.

Are the allegations about Mr Clancy in the reports defamatory?

95. The delegate did not consider whether the allegations were defamatory, nor was this issue addressed by the Council in written submissions or at the hearing. The Council’s case proceeded on the basis that Mr Clancy has not established that the allegations were false or unsubstantiated because the investigator, who was an independent person appointed to investigate the code of conduct complaint, concluded otherwise.

96. Mr Clancy submits that the reports contain “purported findings” that are extremely injurious of his character and defamatory. Those findings are that:

97. [NOT FOR PUBLICATION]

98. [NOT FOR PUBLICATION]

99. [NOT FOR PUBLICATION]

100. In Hurst v Wagga Wagga Council [2011] NSWADT 307, the Tribunal reviewed the decision of the Council to refuse to provide access to a code of conduct and an audit report on the grounds of the public interest considerations against disclosure in clauses 1 and 3, and, relevant to this case, specifically cl 3(e). The Tribunal accepted the submissions made by the Information Commissioner extracted at [83] of the decision as follows:

52. In order to satisfy the second element of this consideration, the respondent must consider and reach a conclusion about whether the allegations are defamatory according to the general principles of defamation law. A general statement of the elements of defamation from Halsbury’s Laws of Australia (chapter written by David Rote) states (with notes removed):

A publication is defamatory of a person if it tends, in the minds of ordinary reasonable people, to injure his or her reputation either by:

(1) disparaging him or her;

(2) causing others to shun or avoid him or her; or

(3) subjecting him or her to hatred, ridicule or contempt.

The cause of action in defamation is complete upon the publication of a defamatory imputation and damage may be inferred without proof of actual loss or injury to the plaintiff.

98. The Tribunal found that complaints made by Mr Hurst included allegations that could be classified as complaints of misconduct and mismanagement against the two staff members. These allegations were disparaging of the two staff members and the Tribunal found that the disputed documents contained information “the disclosure of which could reasonably be expected to reveal false or unsubstantiated allegations about a person that are defamatory” [85]-[88].

99. In the present case, the statements made in the disputed reports are serious and disparaging of Mr Clancy and his character. I accept that the statements, individually and particularly when taken together, would tend in the minds of ordinary reasonable people, to injure Mr Clancy’s reputation. I am satisfied that disclosure of these statements could reasonably be expected to reveal allegations about Mr Clancy that are defamatory. The Council did not make any submissions to the contrary.

100. This is only one aspect of cl 3(e). In the hearing and in submissions, both parties focussed on what was considered to be the critical issue, namely whether the disclosure of the reports could reasonably be expected to reveal false or unsubstantiated allegations about Mr Clancy. This raises questions about: the code of conduct process, the findings of the investigator, whether the Council is the arbiter of fact such that the Council’s resolution and the reasons given in support of its resolution is determinative of the issue of whether the allegations are unsubstantiated and, if not, what approach should be taken by the Tribunal to resolve this controversy.

Are the allegations about Mr Clancy unsubstantiated?

Effect of Council resolution dated 28 November 2023

101. Mr Clancy contends that the “purported findings” contained in the reports are flawed and should not be accepted. He does not contend they are false but says they are unsubstantiated. He submits that the Council is the arbiter of fact on these matters under the Model Code and the LGA, and the Council resolved not to accept the recommendations on the basis that “the investigator has not substantiated any of the allegations”. While the Model Code complaints procedure provides for the appointment of an independent investigator to produce an investigation report and to make recommendations, Mr Clancy contends that it remains with the elected Councillors to determine whether to adopt the recommendations or not. This is clear from clauses 7.60 and 7.61 of the Model Code.

102. Mr Clancy relies on the Supreme Court authorities of Nichols v Singleton Council (No 2) [2011] NSWSC 1517 and the recent decision in Darley. Both cases concerned judicial review of negative code of conduct findings by an independent investigator under the relevant code of conduct and both proceedings turned on consideration of the procedures in the Model Code and the provisions of the LGA.

103. In Nichols, the Court found at [75]:

75. The approach to the construction of the Code urged for Mr Nichols in these proceedings is one which may not be accepted. The Code did not purport to constrain the Council in any way, in the exercise of its statutory powers, once a complaint came before it for consideration. It was the parties’ common position that the Council is obliged to abide by common law principles of procedural fairness in its consideration of the report. That would require Mr Nichols being given an opportunity to be heard by the Council and it considering the matters which he raised, before it determined whether the complaint that there had been a breach of the Code, had been established and if so, what sanctions should be imposed upon him. In such a case, if the Council took the view that such a consideration required some further factual enquiry to be undertaken, before it could come to any conclusions, that is a matter entirely within the Council’s statutory powers to require.

104. In Darley, the independent investigator appointed to investigate code of conduct complaints made against Ms Darley prepared a report recommending that Ms Darley be censured pursuant to s 440G (1) of the LGA for misconduct under s 440F of the LGA. She challenged the validity of the report on the grounds that the investigator did not comply with the procedures for the administration of the Council’s code of conduct. After considering the requirements of the Model Code and the procedures followed by the complaints co-ordinator and the investigator, the Court found that the requirements had not been followed and the report was invalid. The Court also found that the decision-making process for which the Model Code and the procedures provided were not followed and that Ms Darley did not receive the procedural fairness which the procedures intended she be given [127] and [165].

105. The Court concluded that if the LGA and the procedures had been complied with, the Council may have come to a different decision, finding at [166] − [171] as follows:

166. The Code made the Council the decisionmaker in respect of a complaint about a Councillor: cl 7.60.

167. In Nichols, on which Mr O’Toole relied, I concluded that the Code there in question did not purport to constrain the Council in any way, in the exercise of its statutory powers, once a complaint came before it for consideration. And that it was the parties’ common position that the Council was obliged to abide by common law principles of procedural fairness in its consideration of the report there in issue: at [75].

168. That requiring the Councillor to be given an opportunity to be heard by the Council and it considering the matters which the Councillor raised, before it determined whether the complaint that there had been a breach of the Code, had been established and if so, what sanctions should be imposed upon Council.

169. I also concluded that “any construction of the Code which would inhibit the Council’s governing body in the proper performance of its fundamental statutory task of directing and controlling the affairs of the Council, must be rejected. The Code does not purport to oblige the Council to adhere to the outcome of a review conducted under the Code. It must satisfy itself as to the nature and adequacy of the enquiry undertaken by the reviewer and must itself come to a view about the matters raised by the complaint the subject of the review, once satisfied that an adequate enquiry has been undertaken.”: at [76].

170. I have come to no different conclusion in this case.

171. I am satisfied on all the evidence that if the Councillors had not been incorrectly advised as they were at the meeting, had they received the documents attached to Mr O’Toole’s report which helped explain his recommendations, and had they considered his report and Ms Darley’s submissions as the Code required, it is possible that the Council might have taken a different course and/or arrived at a different conclusion about whether or not to censure Ms Darley.

106. It is submitted by Mr Clancy that Nichols and Darley support the proposition that the Council remains the arbiter of the facts on findings about conduct which is the subject of code of conduct complaints and investigations. He contends that his case is similar to Darley because the reports of the investigator are flawed. The Council, by its resolution of 28 November 2023, came to the conclusion that the allegations were not substantiated. The resolution not to adopt the recommendations was reported to OLG, which did not object. Even though the Information Commissioner noted that the Council may wish to obtain the further submissions made by Mr Clancy about the reports when conducting any reconsideration of its decision, the Council had not done so. Mr Clancy further contends that the Council’s reliance on Ka**stanias is misplaced as, while the facts have superficial similarity with the current case, Kastani**as is wrong, did not refer to Nichols and is not in line with Darley.

107. Mr Clancy submits that the resolution of 28 November 2023 was the result of Councillors raising concerns about the September 2023 report. Those concerns are summarised and referred to by the investigator in the supplementary report dated 6 November 2023. The questions raised very serious questions about the integrity of the report. After reviewing the report, the Councillors formed the view that the investigator had not substantiated any of the allegations. Mr Clancy contends that this finding binds the Tribunal as a finding of fact.

108. Thus, Mr Clancy’s primary contention is that the Tribunal does not need to undertake an independent fact finding and should simply accept the findings of the Council, which is the arbiter of fact on these matters.

109. I reject Mr Clancy’s primary contention for several reasons.

110. When examined in context, Nichols and Darley simply confirm the proposition that an investigation report, if a Council has concerns it is flawed, does not bind the Council and the Council retains its statutory role as the decision-maker in respect of the complaint. As observed in Darley*,* cl 7.60 of the Model Code, expressly provides for a Council not to adopt recommendations made by an investigator. However, the Model Code does not provide for the Council to undertake an alternative investigation or to substitute its own findings for those of the investigator. Neither case supports Mr Clancy’s contention that the Council is the arbiter of fact on code of conduct matters.

111. In this case, a number of the Councillors had concerns about the findings of the investigator and decided not to adopt the recommendations as the Council was empowered and arguably obliged under Nichols and Darley to do. The reasons that Council gave for this decision was that it was not satisfied the investigator had substantiated any of the allegations. The core of the Council’s resolution of 28 November 2023 is that the Council did not adopt the recommendation of the investigator and provided its reasons for this, which were reported to OLG, as required under the Model Code.

112. The Council submits, and I accept, that the resolution of the Council does not of itself establish that allegations which were the subject of the reports are false or unsubstantiated. It records, at its highest, the views of the majority who voted against adopting the recommendations after considering the reports and recommendations. The resolution, which arose from concerns expressed by the majority of the Councillors who were entitled to vote, is evidence that a number of the Councillors who were involved in or familiar with the issue raised, did not agree with the findings about the allegations. The Council did not find that the allegations were unsubstantiated but rather that the Council was not satisfied the conclusions made by the investigator had been substantiated. There is a difference.

113. As such, Mr Clancy cannot rely on the Council resolution alone to support his contention.

114. The leads to the consideration of Mr Clancy’s alternative contention, namely, that the Tribunal should undertake its own analysis of the reports to form a view about his conduct and whether the allegations are unsubstantiated.

What is the task of the Tribunal?

115. Nichols and Darley were judicial review proceedings challenging the findings of code of conduct investigations. The Council submits that merits review proceedings in the Tribunal in relation to GIPA applications do not, and should not, involve merits review of code of conduct investigations or the findings made by independent investigators. The Council further submits that this is not the role of the Tribunal and relies on DDL v Mid-Western Regional Council at [22], where the Tribunal stated that in order to establish cl 3(e):

22. The applicant must establish first, that the report contains allegations which are either false or unsubstantiated.

116. In DDL the Tribunal was considering a confidential report of ICAC. The Tribunal found [25]−[27] as follows:

25. The fact that ICAC made no findings of corrupt conduct leads me to conclude that those allegations or complaints of corrupt conduct made to it which led to the investigation are unsubstantiated. I make no findings on whether any of those allegations were false as it is unnecessary to do so, and in my view, there is insufficient evidence to make such a finding.

26. Secondly, the applicant submits that there are also allegations contained in the report itself or which can be inferred from the information in the report. If that is the case, and there are no findings in relation to these allegations by a body with the ostensible authority to do so, it seems clear that they should be treated as unsubstantiated. This approach is supported to some extent by the decision in DDT v Charles Sturt University [2017] NSWCATAD 329, at [73].

27. It is not within the power of the Tribunal to review the evidence before ICAC and make its own findings on these issues. Nor can the Tribunal review ICAC’s power to make findings under s 14 or any other part of the ICAC Act.

117. The Council also says that Kastanias is authority for the proposition that the findings of an independent investigator are evidence that the allegations are substantiated. The Council relies on [121]−[129]:

121. The Applicant has submitted that weight should only be given to the identified considerations in favour of disclosure, if the information contained in the report was true or had been substantiated by Hurstville City Council.

122. I do not agree with that submission. While the Tribunal may make a finding of fact in regard to whether allegations have been substantiated, it cannot engage in a review of the IAB Report in order to determine whether its conclusions are justified.

123. I accept that the Hurstville City Council noted that some persons held the perception that some of the investigator’s conclusions were not supported by the evidence, but this is not a matter for the Tribunal. The Tribunal does not have jurisdiction under the GIPA Act to determine the accuracy of the IAB Report. Similarly, it does not have jurisdiction to determine whether the Hurstville City Council should have acted on the recommendations contained in the report.

124. It is necessary to consider whether or not the IAB Report found that the allegations were substantiated. I accept that it is the intention of the code of conduct and Procedures, that an allegation of a breach of the code of conduct would be considered independently of the governing body of the Council. IAB performed that role in regard to the allegations against the Applicant. IAB’s role was to determine whether or not the allegations were substantiated. The role of the investigator was to make findings of fact and determine whether there had been a breach of the code of conduct.

125. In my view, the fact that the IAB Report was prepared for use in internal decision-making by the Hurstville City Council is not determinative of this issue. I am satisfied that the role of the governing body of the Council did not extend to determining whether there had been a breach of the code of conduct.

126. The IAB Report found that there had been a breach of the code of conduct. The Hurstville City Council did not have authority to make a finding that the allegations were not made out. The Council’s role was to determine whether or not a sanction was to be imposed in relation to the findings.

127. I agree that an allegation is to be regarded as substantiated where a person or body with authority to find that the allegations have been made out makes such a finding. I am satisfied that the allegations have been substantiated through the IAB investigation and report.

128. I accept that the allegations against the Applicant are defamatory. However, I am not satisfied that she has established that any of the allegations are false.

129. In my view, the Applicant’s contentions in regard to clause 3(e) should be given little or no weight.

118. I agree with the observations made by SM Montgomery in Kastanias and the submissions of the Council − the merits review of the GIPA process should not become merits review of the code of conduct process and findings*.* The validity, or conversely invalidity, of such reports and findings is properly the subject of judicial review, not review by the Tribunal. I therefore reject Mr Clancy’s contention that it is the role of the Tribunal to review the report and findings to independently form a view about whether the conclusions are justified.

119. However, nor do I accept that the Tribunal is bound by the findings of the investigator without evaluating the weight that should be afforded to those findings. Findings by an independent investigator may be compelling evidence that supports a conclusion that code of conduct allegations are substantiated. In Kastanias, SM Montgomery was clearly of this view. In DDL, the Tribunal found that it was not within the power of the Tribunal to review the evidence before ICAC and make its own findings on those issues. An ICAC investigation is very different from the investigation process under the Model Code. While ICAC is not bound by the rules of evidence, it nonetheless undertakes formal hearing processes, with counsel and legal advisors appearing, evidence on oath and investigations supported by the use of compulsory powers. Findings by ICAC would carry significant weight.

120. In contrast, findings that are, on their face, vague or unsupported by cogent material may be given little or less weight. In my view, the findings of an independent investigator should be considered as evidence that goes towards these matters, but this evidence must be evaluated and weighed by the Tribunal in its own fact-finding role.

121. Mr Clancy bears the onus to establish cl 3(e). This means that he must satisfy the Tribunal that the disclosure of the reports could reasonably be expected to reveal allegations about him that are false or unsubstantiated and that are defamatory. He does not contend the allegations are false and I have accepted that they are defamatory. As such, the critical issue is whether the disclosure of the reports could reasonably be expected to reveal allegations that are unsubstantiated.

122. As noted, it is not for the Tribunal to undertake its own inquiry to independently form this view about each of the allegations. It is for Mr Clancy to put forward evidence or compelling arguments as to why the conclusions made about the allegations in the reports are flawed or unsubstantiated. This is the focus of cl 3(e). The ordinary meaning of “unsubstantiated” is that the disputed allegations are unproven or that they are not supported by facts, evidence or documentation.

123. Mr Clancy makes submission about why he says the findings and allegations in the September and November 2023 reports should be given limited or no weight. He contends that the reports include findings in relation to allegations made about him which are unsubstantiated or unproven. He says the report is fundamentally flawed because:

124. He did not participate in interviews with the investigator because he did not consider the investigator was objective and there was a flawed process in determining whether the complaint should be investigated.

125. The investigator only interviewed five Councillors, four of whom form an informal political faction which continually attack Mr Clancy no matter what he does and criticised Mr Clancy and another Councillor for not participating in interview.

126. The conclusion of the investigator that a Councillor criticising an officer in front of others as not acceptable makes it “virtually impossible” for elected Councillors to voice their opinion on the direction of the Council without being accused of bullying.

127. The investigator includes disparaging and hearsay remarks in the reports and does not properly distinguish between a Councillor undertaking their statutory role and other alleged wrongful behaviour.

128. In the supplementary report, the investigator disregards the criticisms made by another Councillor who supported Mr Clancy’s conduct and the criticisms and questions raised by several Councillors. The supplementary report also made disparaging remarks about other Councillors, including a Councillor who refused to be interviewed. The disclosure of these comments about the Councillors in the supplementary report would be unfair to both Councillors.

129. It is “not surprising” that the Councillors voted against adopting the investigator’s reports when the reports failed to recognise conflicts of interest, the political motivations of four of the five Councillors interviewed, concerns raised by other Councillors about similar issues raised by Mr Clancy and the continual nature of informal communications between Councillors.

130. In summary, Mr Clancy says the fact that Councillors who were involved in the activities being investigated voted against the final report (which comprised both the September and November 2023 reports), supports his contention that the allegations about him were unsubstantiated. He submits that the questions asked of the investigator and the answers in the supplementary report leave no doubt the final report was flawed. Further, there are new allegations made against other Councillors that are likely to be insulting and offensive and those Councillors have not been consulted.

Findings

125. After reviewing the reports, the criticisms made by a number of Councillors and the investigator’s response to those criticisms, which have been included in the supplementary report, I accept Mr Clancy’s contentions that there are certain allegations in the reports, the disclosure of which could reasonably be expected to reveal allegations about him that are unsubstantiated.

126. Relevantly, I am satisfied that there is doubt about several of the findings made by the investigator for the following reasons:

127. The complaints and subsequent investigation must be examined in the context that there was disagreement between the Councillors about [NOT FOR PUBLICATION] − the two complainants disagree with Mr Clancy’s criticisms. As part of the investigation, the complainants, three other Councillors and an officer of the Council were interviewed. Two of the other Councillors and the Mayor were either not interviewed or declined to be interviewed and raised questions and criticisms in relation to the September 2023 report which make it plain that they supported Mr Clancy and, in some respects, also had similar concerns.

128. The two key allegations which were the subject of the investigator’s findings, as set out above, relate to [NOT FOR PUBLICATION].

129. Allegation 1 is that Mr Clancy has [NOT FOR PUBLICATION].

130. Not all of these allegations are referred to in the complaints outlined above. For instance, those parts of Allegation 1 that contend Mr Clancy [NOT FOR PUBLICATION] are not referred to in the complaints. It is apparent that the investigator formed this view as part of the investigation, but it is unclear from the report whether these allegations were specifically put to Mr Clancy at the outset. This is relevant because a claim that Mr Clancy [NOT FOR PUBLICATION], which is conceded, is very different from an allegation [NOT FOR PUBLICATION].

131. The evidence relied on by the investigator at [6.3] to [6.30] is said to be based on the “uncontested evidence” of the five Councillors who she interviewed, two of whom were the complainants. However, on review of the “uncontested evidence” referred to, it is apparent that some of this evidence comprises hearsay evidence (including communications that were overheard), discussions said to have taken place with Mr Clancy and opinion to the effect that it [NOT FOR PUBLICATION]. Mr Clancy distributed a discussion paper with Councillors about [NOT FOR PUBLICATION].

132. There is no dispute that Mr Clancy had concerns about [NOT FOR PUBLICATION] and sought to discuss those concerns openly with Councillors, although it is unclear whether there was direct or cogent evidence that about public criticisms in community meetings. I accept there is hearsay evidence referred to in the September 2023 report from a resident who [NOT FOR PUBLICATION] although this information is not very specific. In contrast, there is at least one witness interviewed by the investigator who does not support this allegation. Notably, the statement of one of the five Councillors interviewed is to the effect that Mr Clancy had concerns about [NOT FOR PUBLICATION] which had been expressed to him, but that My Clancy [NOT FOR PUBLICATION]. When asked if he had witnessed Councillor Clancy [NOT FOR PUBLICATION] the Councillor reportedly said that he “had never seen anything to suggest that Councillor Clancy had crossed the line”.

133. The investigator raises questions about whether Mr Clancy’s criticism of [NOT FOR PUBLICATION] was justified. Mr Clancy openly raised his concerns with other Councillors. However, the critical issue is whether this was inappropriate and amounted to misconduct. In my view, this does not, of itself, lead to the conclusion that Mr Clancy’s conduct was inappropriate or that it breached the relevant provisions of the Council’s code of conduct and was misconduct under the LGA.

134. One of the reasons for the investigator conclusions about this is that the investigator found Mr Clancy’s claims [NOT FOR PUBLICATION] were “not supported by evidence” and were “not made on a reasonable basis”. In the November 2023 report and in response to a question raised by a Councillor who was not supportive of the recommendations, the investigator stated that there was “no credible evidence” to substantiate Mr Clancy’s claims that [NOT FOR PUBLICATION]. It is also noted that it was “common ground” Mr Clancy attempted to raise these issues but when asked to substantiate these claims he was not able to do so. It is not clear that this was “common ground” and it appears to have been disputed by at least some of the Councillors who raised concerns about the September 2023 report.

135. In summary, the difficulty with Allegation 1 (and therefore Allegations 3 and 4) is that the more serious part of the allegation was not put to Mr Clancy at the outset of the investigation, there is little cogent evidence referred to in the report that suggests Mr Clancy raised these issues publicly with members of the community (as opposed to openly with his fellow Councillors) and the investigator’s conclusion that Mr Clancy’s claims were not supported by evidence but, more importantly, had no reasonable basis, appears to go beyond the available material that was before the investigator. While I accept the investigator was in a difficult position when Mr Clancy refused to participate in the investigation, negative inferences were drawn based on Mr Clancy’s silence, not all Councillors who may have had a different view were interviewed and it is unclear, for instance, whether the Council records were examined before reaching the conclusion that Mr Clancy’s claims had no reasonable basis.

136. I am thus not satisfied that all of the findings in respect of Allegation 1 are established based on the material referred to in the reports. Nor am I satisfied that these matters support a finding that Mr Clancy breached clauses [NOT FOR PUBLICATION]. Alleged breach of these provisions are serious matters that require cogent proof and particularised allegations of misconduct.

137. Mr Clancy was entitled to [NOT FOR PUBLICATION] and was entitled to discuss those concerns with other Councillors. I accept the criticism in the reports that Mr Clancy could and perhaps should have approached this through more formal mechanisms within Council. However, it is not clear what statutory or administrative requirements or policies were breached, it is not clear how this conduct was said to be [NOT FOR PUBLICATION] and there are no particulars of how [NOT FOR PUBLICATION].

138. Allegation 2 contains two aspects. The first claim is that Mr Clancy [NOT FOR PUBLICATION]. This was raised in the complaint. The second part of the allegation is that Mr Clancy [NOT FOR PUBLICATION]. This was not referred to in the complaint and, as with part of Allegation 1, it is not apparent from the reports whether this allegation was put to Mr Clancy by the investigator for response other than near the end of the process. Allegations 5 and 6 turn on Allegation 2.

139. [NOT FOR PUBLICATION]

140. [NOT FOR PUBLICATION].

141. [NOT FOR PUBLICATION]. He contends now and contended at the time that this was not wrongful or inappropriate. There is certainly no evidence that Mr Clancy did this the purpose of [NOT FOR PUBLICATION].

142. I accept there is an issue about whether Mr Clancy should have properly taken different action [NOT FOR PUBLICATION]. He could have raised concerns [NOT FOR PUBLICATION] in a formal Council meeting.

143. However, I am not satisfied that the findings in respect of Allegation 2 are established based on the material referred to in the reports. Nor am I satisfied that these matters support a finding that Mr Clancy breached clauses [NOT FOR PUBLICATION] of the Council’s code of conduct.

144. [NOT FOR PUBLICATION].

145. [NOT FOR PUBLICATION]

146. It is clear that there were ongoing disputes between Councillors about the management of Council affairs. It is also clear that Mr Clancy raised ongoing concerns about [NOT FOR PUBLICATION] and sought to agitate this with Councillors, both on a private and one on one level with Councillors and through Council meetings. These criticisms may have been unfair or unjustified, and it may have been disruptive of the Council business. These are not matters that are fully explored in the reports. There are complaints made about Mr Clancy’s approach in prosecuting his concerns. Despite this, these matters do not in themselves support a number of the findings made by the investigator, for the reasons outlined above. The findings of misconduct must be therefore approached with caution.

147. On balance, I am satisfied that Mr Clancy has discharged his onus to establish that a number of the more critical and serious findings against him of misconduct are doubtful and that disclosure of the reports could reasonably be expected to reveal allegations that are unsubstantiated.

148. This consideration weighs strongly against disclosure in the circumstances of the case.

Could disclosure reasonably be expected to prejudice the supply of confidential information or the effective exercise of the Council’s functions?

130. Mr Clancy contends that disclosure of the reports would prejudice the supply of information in relation to a code of conduct investigation. These investigations are intended to provide a mechanism to deal with complaints made about Councillors and this is an important check and balance on the system of local government in NSW. A Councillor who is deemed to have breached code of conduct and where censure is considered to be warranted will have their name and finding published in the Council minutes. This is sufficient. It has not been the practice to release investigation reports, and they are intended to be confidential. If these reports are disclosed it may have the impact of Councillors and other witnesses refusing to provide evidence to investigations which would impact the effectiveness of those investigations and therefore the effectiveness of the Council’s code of conduct.

131. The Council did not address this in written submissions but in its oral submissions contended that there was no evidence disclosure could reasonably be expected to prejudice the supply of confidential information or the effective exercise of the Council’s functions.

132. The Model Code provides for confidentiality in relation to investigations under Part 12. Clause 12.1 provides:

Information about code of conduct complaints and management and investigation code of conduct complaints is to be treated as confidential it is not to be publicly disclosed except as may be otherwise specifically required or permitted under these procedures.

133. The procedures in the Model Code provide for limited disclosure of information obtained as part of the investigation process. For instance, information may be disclosed through referral to external agencies where warranted (cls 5.35−5.38) and as part of the investigation and procedural fairness process (cls 7.26-7.32)

134. This supports Mr Clancy’s contention that code of conduct investigations are generally not published, and that transparency and accountability is implemented through the publication of the resolution of the Council arising from recommendations. Against this, Mr Clancy has provided no evidence in support of his contentions.

135. In my view, the fact there are confidentiality provisions in the Model Code does not of itself establish that the disclosure of investigation reports could be reasonably be expected to prejudice the supply of confidential information or the effective exercise of the Council’s functions. I am therefore not satisfied that Mr Clancy has established this ground.

What are the public interest considerations in favour of disclosure?

136. The Council submits, and I accept, that the public interest considerations in favour of disclosure are:

137. Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance government account accountability and promote informed debate on issues of public importance. The information sort relates to an investigation undertaken into a code of conduct complaint against an elected counsellor. Without the release of the information, the material available to the public would be limited to the Council resolution where the Council determined that no action should be taken. The public would be better informed by the release of the information so is to better understand the nature of the issues involved.

138. Disclosure of this information could reasonably be expected to inform the public about the operations of the Council and in particular its policies and practises for dealing with members of the public because the release of the information sought would inform the public about the conduct of an elected Councillor.

139. The Council submits that disclosure of the information could reasonably be expected to reveal or substantiate that a Councillor has engaged in misconduct or negligent, improper or unlawful conduct. However, for the reasons outlined above, I reject this submission.

140. Mr Clancy contends that there is limited benefit in such disclosure given the background of the complaint and the flawed findings of the investigator.

141. Given the history of conflict in the Council and the OLG’s views about public perceptions and concerns about the operation of the Council, I accept there are significant public interest considerations in favour of disclosure. However, I also accept there are concerns about the findings in the reports. This does not necessarily diminish the public benefits of disclosure as the criticisms and questions of Councillors referred to in the November 2023 report disclose some of the controversy on these issues. While I accept the Council’s submission that the community may be better informed about the issues that resulted in the Council resolution made on 28 November 2023, I also accept that the controversy in relation to the reports may not necessarily add to informed debate. On balance, these issues are in favour of disclosure but, in my view, not strongly so.

Balancing exercise

140. Section 13 of the GIPA Act requires that I undertake a balancing exercise to form a view about whether there is an overriding public interest against disclosure having regard to the public interest considerations identified as being relevant, both in favour and against disclosure.

141. I accept there are public interest considerations in favour of disclosure. On the other hand, I have found that Mr Clancy has established cl 3 (e) and that this weighs strongly against disclosure.

142. I have considered whether it is possible to redact the information or certain parts of the information to militate against negative impact of the public interest consideration against disclosure under cl 3 (e). Relevantly, I have considered whether some parts of the reports can be disclosed and whether those parts of the reports that make allegations that have not been substantiated and are defamatory can be redacted without making the reports nonsensical, misleading or otherwise materially compromise meaning and content of the reports. Neither party made submissions about this. Having considered this issue carefully, I am not satisfied it is possible for the reports to be released with redactions in this way.

143. In weighing up these considerations, I accept Mr clancy’s submissions that, on balance, there is an overriding public interest against disclosure. I am satisfied that the decision under review should be set aside and substituted with a decision that access to the September and November 2023 reports be refused.

Conclusions and Orders

144. For the reasons outlined above, the Tribunal sets aside the decision under review and substitutes a decision to refuse to provide access to the confidential council reports October 2023 and confidential council reports November 2023.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar