McNeill v Clarence Valley Council

Materials before the Tribunal

1. In addition to the application dated 12 July 2024, filed on 19 July 2024 (A1), the Applicant filed submissions, a witness statement of the Applicant, and accompanying documents on 24 September 2024 (bundle at A2); many of which related to the issue of Summons (which was refused), and/or overlapped with matters being considered in the other proceedings, despite the consolidation request being refused by the Tribunal on 5 August 2024.
2. The Council relied on the following materials: 1. "Respondent's Submissions" dated 13 September 2024 (filed 13 September 2024) (R1); 2. Affidavit of Alexandra Moar (Ms Moar) dated 13 September 2024 (filed 13 September 2024) with annexures (R2); 3. "Respondent's Submissions in Reply" dated 1 October 2024 (filed 2 October 2024) (R3); 4. (Further) Affidavit of Ms Moar dated 1 October 2024 (filed 2 October 2024) annexing a revised schedule of documents (R4); and 5. Affidavit of Marlie Jade Caban dated 1 October 2024 (filed 2 October 2024) annexing the correspondence between the parties dated 25 September 2024 referred to above (R5).
3. As requested during the hearing, the Council provided a copy of the Information Management Policy of the Council by email to the Tribunal on 15 October 2024 (R6).

Jurisdiction and role of the Tribunal

1. Under the Administrative Decisions Review Act 1997 (NSW) (ADR Act): 1. An application for administrative review by the Tribunal of "an administratively reviewable decision" may only be made by an interested person: s 55. 2. An administratively reviewable decision is "a decision of an administrator over which the Tribunal has administrative review jurisdiction": s 7 ADR Act. 3. An "administrator" is the person or body that makes the decision under enabling legislation (relevantly, here, the Council) : s 8 ADR Act. 4. The Tribunal has administrative review jurisdiction over a decision of an administrator "if enabling legislation [here, the GIPA Act] provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision": s 9 ADR Act.
2. Under the GIPA Act: 1. "Government information" means information contained in a record held by an agency: s 4(1); 2. A "record" is defined in cl 10 of Schedule 4 as follows: (1) record means any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means. (2) A reference in this Act to a record includes a reference to a copy of the record. (3) For the purposes of the definition of record in this Act, the knowledge of a person is not a record. 1. Section 80 sets out which decisions are "reviewable decisions" of an agency in respect of an access application. Relevantly, the section includes: (d) a decision to provide access or to refuse to provide access to information in response to an access application, (e) a decision that government information is not held by the agency, (f) a decision that information applied for is already available to the applicant, … (i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant), 1. Section 100(1) gives a person aggrieved by a reviewable decision a right to apply to NCAT for an administrative review of that decision under the ADR Act.
3. In this case, the Applicant is an "interested person" under the ADR Act and a person who is "aggrieved" for the purposes of the GIPA Act. Accordingly, the Tribunal's administrative review jurisdiction is engaged under the provisions above, and s 30 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act).
4. In determining an application for administrative review, the Tribunal is to consider s 63 of the ADR Act which provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
5. Section 105(1) of the GIPA Act places the onus on the Council in these proceedings to justify its decision "made under" the GIPA Act; it provides as follows: 105 Onus on agency to justify decisions In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section …

Object of the GIPA Act

1. The object of the GIPA Act as set out in s 3 is to open government information to the public. This is done by authorising and encouraging the proactive release of information by agencies and by giving members of the public an enforceable right to access government information. Access to government information is to be restricted only when there is an overriding public interest against disclosure.

Dealing with access applications

1. Part 4, Division 3 of the GIPA Act sets out the process for dealing with access applications.
2. In responding to an access application there is a requirement for the Council to undertake reasonable searches to locate information sought in the request, which is held by it. This obligation arises under s 53 of the GIPA Act which provides: 53 Searches for information held by agency (1) The obligation of an agency to provide access to government information in response to an access application is limited to information held by the agency when the application is received. (2) An agency must undertake such reasonable searches as may be necessary to find any of the government information applied for that was held by the agency when the application was received. The agency's searches must be conducted using the most efficient means reasonably available to the agency. (3) The obligation of an agency to undertake reasonable searches extends to searches using any resources reasonably available to the agency including resources that facilitate the retrieval of information stored electronically. (4) An agency is not required to search for information in records held by the agency in an electronic backup system unless a record containing the information has been lost to the agency as a result of having been destroyed, transferred, or otherwise dealt with, in contravention of the State Records Act 1998 or contrary to the agency's established record management procedures. (5) An agency is not required to undertake any search for information that would require an unreasonable and substantial diversion of the agency's resources.
3. Following that process, the Council (and here, the Tribunal) can do any of the following as provided for by s 58 of the GIPA Act (my emphasis): (1) An agency decides an access application for government information by - (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) 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. Note : These decisions are reviewable under Part 5. (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired.

Personal information should not be disclosed

1. Section 12 of the GIPA Act provides that there "is a general public interest in favour of the disclosure of government information". But s 13 sets out a "public interest test" which requires a determination of whether "on balance," there are public interest considerations in favour of disclosure which outweigh the public interest considerations against disclosure.
2. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 and Hurst v Wagga Wagga City Council [2011] NSWADT 307, the Tribunal confirmed that the "public interest test" under section 13 requires agencies to start with the presumption in favour of disclosure of information and: 1. identify the public interest in favour of disclosure (s 12); 2. identify the public interest against disclosure with reference to the items listed in the Table to s 14 of the GIPA Act (the s 14 Table); and 3. determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information.
3. Section 14 relevantly provides: 14. Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
4. The s 14 Table lists "public interest considerations" against the disclosure of government information which includes: 3. Individual rights, judicial processes and natural justice 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.
5. Schedule 4, clause 4 of the GIPA Act contains the definition of "personal information" for the purposes of the Act. It provides, relevantly: 4 Personal information (1) In this Act, "personal information" means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion. (2) Personal information includes such things as an individual's fingerprints, retina prints, body samples or genetic characteristics. (3) Personal information does not include any of the following: … (b) information about an individual (comprising the individual's name and non-personal contact details, including the individual's position title, public functions and the agency in which the individual works) that reveals nothing more than the fact that the person was engaged in the exercise of public functions, …
6. Part 2, Division 1 of the Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) sets out the "information protection principles" prescribed by that Act. Section 18 relevantly provides: 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless - (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person. …
7. The term "personal information" is defined in s 4 of the PPIP Act, relevantly, as follows: 4 Definition of "Personal Information" (1) In this Act, "personal information" means information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. …

The Applicant's submissions and claims

1. I turn now to deal with the breadth of the claims and submissions made by the Applicant.
2. The grounds of the Application are set out at paragraph 10 above.

Maters within the scope of this review

1. The following matters raised by the Applicant are relevant to my review, but subject to limits: 1. Inadequate searches: The Applicant says the "decision maker" (of the Original Decision) claims to have consulted with relevant staff, but provides no evidence of thorough searches being conducted for the specific documents and information he requested particularly regarding the investigation of Option B as directed by Council resolution 07.22.290. Although an "inadequate search" is not a relevant "decision", there is an implied decision under s 80(e) of the GIPA Act that information is "not held" to the extent it is not produced. 1. "Failure to address key aspects of the request": The Applicant says the decision did not explicitly address several key elements of his request, including: confirmation of whether records exist showing the General Manager investigated Option B as directed; information about Option B's viability and completion timeline; and evidence of councillors being briefed on prior Option B discussions with DRNSW. To the extent that the Council held "government information" (as defined) as at the date of the request that was not produced in response to the terms of his GIPA Application, this forms part of the decision that information is "not held" under s 80(e). 1. "Over-reliance on copyright claims": The Applicant says the decision maker has overly restricted access to key documents citing copyright concerns, when the GIPA Act allows for provision of copies in certain circumstances, especially given the strong public interest in this matter. This raises questions relating to claims for copyright and the operation of s 74 of the GIPA Act. 2. "Inadequate justification for redactions": The Applicant says that the decision provides minimal explanation for redactions made - citing only broad legislative clauses without specific reasoning. This raises questions relating to public interest considerations in respect of redactions made for personal information.

Matters outside the scope of this Review

1. The Respondent submitted that much of the Applicant's submissions are concerned with the merits of Council's General Manager's actions in relation to considering and information Councillors of "Option B" and that his submissions relating to the following issues are not relevant to the reviewable decision: 1. Council's record-keeping; 2. Council's project management; 3. Council's implementation of Council resolution 07.220.290; 4. Adequacy of Council's decision-making processes; 5. Possible breaches of the State Records Act 1998 (NSW) (State Records Act) and the Local Government Act 1993 (NSW) (Local Government Act); 6. The General Manager's actions and influence on Council's decision-making process; 7. Reasons for Council's decisions and actions; and 8. Council's funding procedures.
2. By way of example, the Applicant submitted as follows: 1. The Applicant says that s 105(1) of the GIPA Act, together with the objects provision in s 3 of the GIPA Act, requires the Council to justify why no records have been created. He says that the Council has not met its obligations either because they did not create documents that they should have created, and have therefore become (in Council's view) "unaccountable" for their actions which were incorrect and based on misinformation. 2. The Applicant says there were "systemic issues" within Council's systems of record-keeping which the Tribunal should require Council to address, using the powers under s 111 and s 112 of the GIPA Act. He asked the Tribunal to recommend a review by the Information Commissioner. 3. He says that the lack of records produced in respect of Council's consideration of Option B, including any interactions with the NSW and Federal Government, enabled (indeed, required) the Tribunal to review Council's compliance with the requirements of the State Records Act, the Local Government Act, the Commonwealth Grant Rules and Guidelines, the Bushfire Local Economic Recovery Fund Program Guidelines, and the NSW Grant Administration Guidelines. He said that section 12.1 of the State Records Act required the Council to keep full and complete records of their investigation of Option B. 4. He said there was "misinformation" which influenced the decision-making process. In this regard, the Applicant sought to explain to me why he did not agree with the actions taken (or not taken) by the Council in respect of the non-progression of Option B. For example, he said that there was an admission by the General Manager that Option B did not meet the Commonwealth and State grant guidelines.
3. The Applicant orally submitted at the hearing, inter alia, that: Council has failed to follow procedures under legislation and guideline to progress Option B and the grant funding from the NSW and Federal Government. I accept that no records exist at the moment. Those records should have been created, should exist and therefore should have been produced, in reliance on ss 53, 111 and 112 of the GIPA Act.
4. The Applicant's submissions and accompanying documents also strayed into matters relating to and referencing a "Concerns Notice" which was the matter of a separate GIPA review and GIPA decision.
5. As explained to the Applicant at the hearing: 1. The administrative review jurisdiction is specifically conferred (and limited) by the provisions of the relevant legislation; 2. The Tribunal's jurisdiction is limited to a review of the Respondent's Decision in respect of the application made to it, and only then in respect of identified "reviewable decisions". 3. An applicant cannot, after the application has been dealt with by the agency, widen the scope of the process: see OD v Department of Education and Training (GD) [2005] NSWADTAP 74 at [13] to [14]. 4. Proceedings under the GIPA Act should not be used "as a vehicle for the collateral review of the merits or validity of official action". Crewdson v Central Sydney AHS [2002] NSWCA 345 at [24]; Raven v University of Sydney [2015] NSWCATAD 104 at [45].
6. This Tribunal does not have jurisdiction to address matters regarding the State Records Act and the Local Government Act, including the documentation of decisions, the maintenance of records, what is created, what was not created, what should have been created, or why things were done or were not done (in respect of grants, funding decisions, Council matters or otherwise).
7. Nor does s 105 or any other provision of the GIPA Act require the Council to "justify" its decisions in the sense submitted by the Applicant. Section 105(1) of the GIPA Act places the onus on the Council in these proceedings to justify its decisions that are the subject of the review before the Tribunal.
8. And, following my consideration of the relevant matters below, no issue arises in respect of the decision under review that require me to consider matters of general "procedural fairness", or orders relating to s 111 (Referral of Systemic Issues to the Information Commissioner) or s 112 (Report of Improper Conduct) of the GIPA Act. Nor - as submitted by the Respondent - has the Applicant provided any evidence warranting referrals under s 11 or s 112 of the GIPA Act.
9. Cases raised by the Applicant do not advance the matter any further. Indeed, the High Court decision of Kirk v Industrial Relations Commission [2010] HCA 1 cited by the Applicant re-asserts (at [66]) the proposition that a tribunal cannot stray outside the boundaries of its jurisdiction conferred by the enabling legislation, i.e: There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do.
10. I have therefore determined that the above matters sought to be agitated by the Applicant are beyond the permissible scope of the administrative review function of this Tribunal on the application before it.

Issue 1: Was information "not held" by the Council?

Applicable principles

1. Under s 80(e) of the GIPA Act, the Tribunal has jurisdiction to review a decision by an agency that it does not hold the information requested. That section also confers jurisdiction on the Tribunal to review an "implicit decision" that no further information is held, beyond that which is dealt with in a decision: Amos v Central Coast Council [2018] NSWCATAD 101.
2. As noted above, "government information" is defined in s 4 of the GIPA Act as "information contained in a record held by an agency". In Redfern Legal Centre v Commissioner of Police [2021] NSWCATAD 288, the Tribunal found that "government information" was a reference to an existing record of information held by an agency, not a record that is not in existence but is capable of being produced. Accordingly, if no record containing the requested information exists at the time when the application is made, a decision that the information is "not held" is appropriate.
3. In discharging the Council's burden of proof requiring that the Tribunal be satisfied that the information is "not held", the reasonableness of the search undertaken (s 53) operates as a 'plainly relevant factor': Wojciechowska v Commissioner of Police [2020] NSWCATAP 173 (Wojciechowska) at [41].
4. Wojciechowska (at [44]) also stated: In summary, the task for the Tribunal when reviewing a decision that the requested information is not held by the agency, is to: (1) identify on the basis of the agency's reasons and the applicant's submissions, any relevant factual issues including those derived from s 53(1)- (5); (2) determine whether the agency has proved any relevant factual issues on the balance of probabilities; (3) consider any evidence which may have emerged since the agency made its decision, which might tend to prove that the requested information is held by the agency; (4) applying those findings, decide what the correct or preferable decision is; (5) affirm, set aside or vary the agency's decision: s 63(3) of the Administrative Decisions Review Act.
5. What constitutes a reasonable search will vary with the circumstances of each matter and depends upon the agency to whom the access application is made and on what terms it is made.

Evidence before the Tribunal

1. The Council relied on the affidavits of Ms Alexandra Moar (R2 and R4).
2. Ms Moar appeared via AVL before the Tribunal. She confirmed that her affidavits were true and correct. Relevant facts from her affidavit, as supplemented by her oral evidence, are set out below. Ms Moar was cross-examined by Mr McNeill. It became apparent that Mr McNeill sought to pursue his own agenda, and the majority of his questions were of no relevance in establishing additional facts relevant to my review.

Role of Ms Moar

1. Ms Moar is the Director, Corporate and Community at the Council.
2. She reports directly to the General Manager at the Council, and oversees four sections of the Council. Relevantly, that includes "Organisational Development", which includes governance; as well as a Customer Service Officer who deals with requests for information.
3. Any GIPA requests are received by the Governance Officer who processes the application and has authority to prepare a notice of decision. This officer previously reported directly to Ms Moar; she now reports to the Manager, Organisational Development, who in return reports to Ms Moar.
4. Ms Moar explained the relevant systems and processes relating to the recording and production of documents in response to GIPA applications. She spoke of the importance of ensuring that everyone was aware of their duty to comply with the information policies applicable to the Council. The "Information Management" Policy adopted by the Council on 20 October 2015, which sets out the relevant processes and policies required to be complied with by all Council staff/officers, was provided at the hearing (and is also publicly available on the Council's website).
5. The Tribunal asked Ms Moar to provide further detail regarding the electronic record keeping system, the searches undertaken in response to the Applicant's application, and how the Tribunal could be satisfied that all relevant responsive documents had been produced.
6. Ms Moar explained the Council's recordkeeping system as follows: 1. The Council uses "ECM" as its document management system. 2. It is located in their "Technology One" database and has been in place for many years. 3. The ECM system is the repository for the recording of emails, correspondence and related items in accordance with the Information Management Policy. Documents are registered in ECM and given a unique number. All official outgoing communications, including letters, faxes, e-mails etc need to contain a reference to the document number. 4. The procedure for phonecalls regarding Council business was that these were generally recorded by way of an email confirming the discussion or following up on matters discussed; that email was loaded into ECM. It was also possible to put a note of a call directly on to the ECM system.

The searches undertaken

1. The original searches conducted by Council's Governance Officer were set out in the Notice of Decision dated 8 July 2024, including her consultations with the staff members to identify all relevant records in relation to the requested information.
2. Ms Moar had conducted a recent search of Council's ECM platform for the same subject matter for two GIPA applications, and these results were provided to the Applicant on 28 August 2024 (Annexure A of Ms Moar's Affidavit dated 1 October 2024). She explained that these were two emails listed at items 13 and 14 of Annexure A of her 1 October 2024 Affidavit (R4 at items 13 and 14), and although some content had been issued by way of "cut and pasting" into a timeline document previously issued to the Applicant, these two emails were separately released to the Applicant for transparency.
3. A further search of the ECM conducted by Ms Moar on 10 September 2024 revealed no additional responsive documents.
4. Ms Moar said that, following her enquiries, she was satisfied that all information responsive to the Applicant's request was provided, and no other information is held: 1. Searches were conducted across the ECM system; 2. There was no relevant issue in locating any responsive information, as the Applicant had lodged previous GIPA requests which had been actioned by Council in respect of the same or related matters, although this request sought slightly different information. 3. Before responding to the GIPA Application, their processes required that all relevant Council officers/staff be identified, and that they be asked to confirm that their records had been loaded on to the ECM system; that process was followed. Such a request created a "task" that was then required to be actioned to ensure that was completed; she confirmed that they "must reply" to the task, and the reply was also recorded on the ECM to say it was "all done". 4. She confirmed that she was not aware of any other searches that could be undertaken to find the requested information.

Why no further records were available

1. Ms Moar deposed in her Affidavit dated 13 September 2024, at some length, as to the chronology of events and her review of Council's documents which led to her conclusion that there were no further records of discussions regarding Option B available for disclosure (R2 at [10] ff). In summary, she concluded that on 28 February 2023, Motion 07.22.290 was rescinded at the Council meeting and no other work was undertaken in relation to Option B (R2 at [10(n)]).

Consideration

1. The Applicant's submissions were to the effect that the Council's response to his GIPA application "has been unsatisfactory" and that "there appears to be a significant lack of documentation regarding the implementation of Council resolution 07.22.290". His submissions tended to circle back to concerns about process and "Council's handling of the Treelands Drive Community Hub project" and their "failure" to follow proper procedures. However, I could not ascertain anything of any specificity from the Applicant's evidence or submissions that raised a concern that other responsive documents were - or were likely to be - in existence as at the date of his request.
2. I found Ms Moar to be a truthful and credible witness and accept her evidence regarding the Council's systems, their functionality, and the searches undertaken. I am satisfied that the record keeping system was such that the relevant "government information", if in existence, was located on the ECM system (the Database). Both the Governance Officer and Ms Moar obtained appropriate assistance and confirmations from the relevant Council staff / officers and Ms Moar adequately explained all relevant matters to the Tribunal.
3. She sought to explain during her evidence, for the benefit of the Applicant, that "documents that he thinks are missing don't exist", and that there were a number of misunderstandings by him relating whether there was funding in place, whether there was a requirement to talk to the grant funding body, and what the resolution referred to in his GIPA Application actually required of the Council. Although not relevant to the matters before me, and therefore not requiring a recording here of the exchanges, I observed there was a fundamental disconnect regarding such matters that was borne out through the cross examination of Ms Moar by the Applicant. In any event, Ms Moar's evidence was not relevantly challenged.
4. In respect of the matters I am required to consider, I am satisfied the Council conducted reasonable searches, and that it is unlikely that any further responsive information is held.
5. Accordingly, the Council has discharged its onus of establishing that its implied decision that it does not hold any further information (refer s 80(e) of the GIPA Act) is justified.

Issue 2: Redactions made for personal information

1. The Council noted at the hearing that the claims relating to the personal information redactions were not relevantly in dispute. Nonetheless, this was also a ground in the Applicant's application.
2. In her Affidavit dated 13 September 2024 (R2), Ms Moar stated at [6] that the redactions related to certain contact information and signatures. That evidence was not disputed by the Applicant at the hearing.
3. I therefore find on the balance of probabilities that the reasons for the redactions made to the documents released to the Applicant were to protect the personal information of individuals (in accordance with the presumption in Table 3(b) of section 14 of the GIPA Act), that there was an overriding public interest against disclosure, and as a result, the redaction of such information on the copy of a record to be accessed was permitted under s 74 of the GIPA Act.
4. The Council has discharged its onus of proof and I find that the correct and preferable decision was as made by the Council in respect of the redactions made.

Issue 3: Claims for copyright (architect)

1. The Council noted at the hearing that these claims relating to copyright in the architect's plans were also not relevantly in dispute. Those claims were identified in the Schedule of Documents in the Notice of Decision.
2. Nonetheless, as it was also a ground in the Applicant's application, I find that: 1. the Council was informed by the architect (a third party who was consulted as required under the provisions of the GIPA Act) that disclosure by way of the provision of a copy of the plans would involve an infringement of copyright; and 2. as a result, the process by which access was granted to the Applicant (relevantly, by way of providing a reasonable opportunity to inspect a record containing the information at the Council office of their choice), instead of providing a copy as requested by the Applicant, was permitted under s 72(1)(a) and 72(2)(c) of the GIPA Act.
3. The Respondent noted in their submissions that despite reasonable opportunity being provided to the Applicant to inspect those documents at the offered location/s, the Application declined to inspect them.
4. Consistent with the decision in Amos v Central Coast Council [2018] NSWCATAD 101 at [76], I find that the correct and preferable decision as to the form of access to those documents is that made by the Council.

Costs

1. The Council submitted that costs should be awarded to it (if it were to succeed) pursuant to s 60(2) of the CAT Act. By way of evidence, the Council presented the Affidavit of Ms Caban (R5) (the Council's solicitor) which annexed the correspondence of 25 September 2024 (refer [15]-[16] above).
2. The general rule of the Tribunal is that each party bears its own costs, unless "special circumstances" exist, in which case the Tribunal has a discretion as to whether costs should be ordered in favour of the party claiming them.
3. Section 60 of the CAT Act provides as follows: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following - (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36(3), (g) any other matter that the Tribunal considers relevant. (4) If costs are to be awarded by the Tribunal, the Tribunal may - (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (5) In this section - costs includes - (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.
4. I have had regard to the correspondence and the submissions of the Council. It is clear Mr McNeill was put on notice by the Council as to the costs order sought and that the Council has spent time and resources in the proceedings not being withdrawn, dealing with the proposed issue of a summons and otherwise. In this case, Mr McNeill is self-represented. The Tribunal deals with many matters involving self-represented applicants. The proceedings were not overly complex, although I have addressed above the various claims and other matters raised by the Applicant which were misconceived, and directed to matters other than determining the more simple and relevant question as to whether his access application had been properly determined.
5. I find that the circumstances of this matter do not give rise to "special circumstances" such as to depart from the general rule and to warrant an award of costs under s 60(2) of the CAT Act. I therefore decline to make the orders sought.
6. My finding in no way is intended to limit any future consideration by the Tribunal in respect of applications by the Council for cost orders in subsequent proceedings between the parties.

Orders

1. The correct and preferable decision is to affirm the Council's decision in respect of the matters the subject of the review.
2. I make the following orders: 1. The decision under review is affirmed.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2024