Walker v Gosford City Council

NCAT Administrative and Equal Opportunity|2016-04-18

Background

On 9 October 2015 the respondent received correspondence about the application from the Tribunal and decided to conduct an internal review of the decision. It appears that the respondent undertook this course of its own volition. As a result of this review the respondent provided a number of documents (that had previously been withheld). In addition the respondent made an number of findings that aspects of the initial decision were unsatisfactory, in that the respondent had not appropriately dealt with the application in the first instance. An apology was conveyed with the findings and material for release on 26 October 2015.
It appears that an ongoing dispute concerning processing fees transpired between October 2015 and the hearing, however at the time of the hearing both parties advised the Tribunal that any claims relating to fees and charges under the GIPA Act, were no longer pressed. At the time of the hearing the documents which remained in dispute were narrowed to only include the Harris Building Design (HBD) plans. The compass of the remaining dispute between the parties was that the applicant sought a hard or electronic copy of those HBD Plans (Documents 13-23 inclusive).
As the data or information could be characterised as material for which a claim of copyright had been made, the respondent relied upon those provisions of the Regulation under Schedule 1 which exempted the information from the 'open access' characterisation.
It does not appear as though the respondent considered the copyright type considerations attaching to section 14 Clauses 4 (c) and (d) of the Table to section 14 of the GIPA Act (in determining that significant weight should attach to public interest considerations against disclosure so as to override the general presumptions in favour of disclosure).
The respondent had regard to the Knowledge Update (March 2012) issued by the Information Commissioner. The Knowledge Update of March 2012 referred to above, is published on the Information and Privacy Commission website. It contains the following relevant information: The Copyright Act 1968 (Cth) The Copyright Act 1968 (Cth) (Copyright Act) gives copyright owners the exclusive right to do certain acts. In relation to architects' plans, these include reproduction, communication to the public (e.g. by emailing or uploading to a website) and publishing the plans (section 31). With certain limited exceptions, copyright is infringed where someone other than the copyright owner does any act, or authorises any act to be done, that is the exclusive right of the copyright owner, without the owner's permission (see sections 36 and 13(1)). Copyright is not infringed where the copyright owner has given consent to the particular actions, either expressly or by means of an implied licence. There is also a statutory licence permitting Commonwealth and State (including Territory) agencies to deal with copyright material on certain conditions. Section 183 of the Copyright Act provides that copyright is not infringed by the Commonwealth or a State, or a person authorised in writing by the Commonwealth or a State, doing any acts that would otherwise breach copyright if the acts are done for the services of the Commonwealth or State. Commonwealth or State governments are required to pay a licence fee for use of the material to the copyright owner or a collecting agency, but do not have to ask permission. In addition, the Copyright Act provides for certain defences whereby, in the right circumstances, certain actions will not infringe copyright. In particular, sections 40 and 103C allow fair dealing for the purpose of research or study, while sections 41 and 103A allow fair dealing for the purpose of criticism or review. Questions asked by the IPC As "artistic works", architectural plans and drawings are protected by copyright, which is generally owned by the firm, or the architect or draftsperson. As we noted above, the requirement for local councils to provide copies of plans attached to DAs is not new, having pre-dated the GIPA Act. However, as the issue of how councils can meet this requirement without infringing copyright had never been satisfactorily resolved, local councils asked the IPC to provide some clarity with regard to their obligations under the GIPA Act to publish, copy and distribute material to which copyright is attached.

The Hearing

At the hearing of the matter the applicant was assisted by Mr R Smith. For the purpose of the hearing and in the absence of any objection by the respondent it was unnecessary to formally give leave to Mr Smith in accordance with section 45 (1) (b) (i) of the Civil and Administrative Tribunal Act 2013. In any event Mr Smith was not seeking to represent the applicant, merely to assist with the articulation of his case.
The Information Commissioner was also represented at the hearing having exercised her right under section 104 of the GIPA Act. In respect of rights of appearance I note that it was open to the third party objector to appear in these proceedings and ventilate any arguments in support of their position or otherwise. Section 104 of the GIPA Act relevantly provides such a mechanism. 104 Right of appearance before NCAT (1) …… (2) ..…. (3) Any person who could be aggrieved by a decision of NCAT on a review under this Division has a right to appear and be heard in any proceedings before NCAT in relation to the review.
There was some discussion prior to considering the evidence that some of the documents relevant to the application had been removed or 'taken down' from the website. In addition (as noted above) the applicant confirmed that there was no longer any dispute between the parties concerning fees and charges levied or sought to be levied or refunds arising from the matter.
It was submitted that the current case rested on the potential infringement of copyright and in that regard the relevant legislation was the Copyright Act 1968 (Cth).

Applicant's Evidence and Submissions

The applicant submitted that under section 41 of the Copyright Act 1968 (Cth) there was a fair dealing exemption and that the Tribunal should give access to the material on that basis. The relevant provision provides: COPYRIGHT ACT 1968 - SECT 41 Fair dealing for purpose of criticism or review A fair dealing with a literary, dramatic, musical or artistic work, or with an adaptation of a literary, dramatic or musical work, does not constitute an infringement of the copyright in the work if it is for the purpose of criticism or review, whether of that work or of another work, and a sufficient acknowledgement of the work is made.
Reliance was also placed on section 158 A of the Environmental Planning and Assessment Act 1979. It was submitted that because of the context for which the documents were held by the respondent (as part of a process considered under that planning legislation), then the provision prohibited the invocation of a copyright claim. The provision provides: 158A Copyright in documents used for purposes of this Act - indemnification (1) A relevant person who is not entitled to copyright in a document that is part of a planning matter is taken to have indemnified all persons using the document for the purposes of this Act against any claim or action in respect of a breach of copyright in the document. (2) For the purposes of this section: (a) a development application or an application for a complying development certificate (or an application to modify a development consent) is a planning matter, and the applicant is the relevant person, and (b) an application for approval to carry out State significant infrastructure (or an application to modify an approval of State significant infrastructure) is a planning matter, and the applicant is the relevant person, and (c) a Part 3A project or concept plan application within the meaning of Schedule 6A (or a request to modify an approval or concept plan under Part 3A), and any environmental assessment or report under Part 3A, is a planning matter, and the applicant is the relevant person, and (d) an environmental impact statement under Part 5 or 5.1 (including any preferred infrastructure report under Part 5.1) is a planning matter, and the proponent under Part 5 or 5.1 is the relevant person, and (e) a planning proposal under Part 3 is a planning matter, and the person preparing the proposal is the relevant person, and (f) a planning agreement referred to in section 93F is a planning matter, and the developer under the agreement is the relevant person, and (g) a matter or thing under this Act that is declared by the regulations for the purposes of this section is a planning matter, and the person declared by the regulations is the relevant person in respect of that matter or thing. (3) For the purposes of this section, a document is part of a planning matter if it forms part of or accompanies the planning matter, or is subsequently submitted by the relevant person in support of the planning matter or is exhibited or made public in accordance with a requirement made by or under this Act in relation to the planning matter. (4) The regulations may limit the operation of this section. (5) This section extends to a planning matter that was made or submitted before the commencement of this section.
The applicant made oral submissions at hearing that in his view the respondent had failed to provide a balance between considering the copyright rights, and the general rights to information being released in the public interest under the GIPA Act.
Those submissions addressed matters in his written submissions whereby the applicant raised the following points:

The respondent's offer for him to view the plans does not satisfy his GIPA Act request.
The respondent's use of the Copyright Act as justification for not providing the documents is incorrect.
NCAT is requested to review the conflict between the GIPA Act and the Copyright Act in this matter.
In the applicant's view the copying of building design drawings for review and comment, is not infringing Copyright.
Other Councils provide those documents openly and permanently on their websites under Development Approval Tracking for example Pittwater Council.

The remainder of the written points submitted went to the merits of the development and not the GIPA Act grounds under which the information had been decided to be provided under limited access.
In oral submissions the applicant also took the Tribunal to many of the exemptions to copyright, as contained within the Copyright Act itself, and maintained that these matters on any ordinary reading would facilitate the making of a decision by the Tribunal in the applicant's favour.

Respondent's Evidence and Submissions

The respondent relied upon its two sets of written submissions. In oral submissions the respondent submitted that it would be open to the applicant to make his own copies of the contentious material and rely on his own claimed exemptions to the copyright provisions.
The respondent submitted that it had offered for the applicant to inspect the material by arrangement, and that offer remained open. At the conclusion of the hearing further discussions were had on this point and correspondence was exchanged between the parties post hearing. That correspondence was later provided to the Tribunal.
In submissions the respondent outlined how they had undertaken a review, and had listened and considered all requests outside of the strict parameters of the copyright exemptions as set out in the GIPA Act.
In addition the respondent outlined how they had twice sought consent from the copyright holder, in order to facilitate the terms of the applicants request. The request for consent had been rejected on two occasions.
In addition the respondent submitted that they were bound by the provisions of section 6 (6) and section 72 of the GIPA Act in refusing to provide the information in the manner requested by the applicant.
Whilst the respondent conceded that the Environmental Planning and Assessment Act 1979 provided an indemnification to a copyright breach, the provisions did not make it lawful to breach copyright. In addition the context of the applicant's accessing (in accordance with section 55 of the GIPA Act), was not concerning an objection (albeit a third party objection), nor was there evidence at the time of the decision that he was accessing the documents for the purpose of a planning matter. Whilst the applicant made submissions at the hearing about the impact that the development has had on his relative (the adjoining property owner), the planning and approval process was now complete.

Information Commissioner's Submissions

The Information Commissioner provided written submissions and their representative appeared at the hearing. They relied on their written submissions. The Information Commissioner did not propose to address factual matters, but did address section 6 of the GIPA act and the Knowledge Update of March 2012 which covered copyright.
The information Commissioner submitted that in accordance with the Knowledge Update issued under section 17 (d) of the GIPA Act, they confirmed that Councils and council officers should not breach copyright laws.
The Information Commissioner submitted that in the alternative, Council's should seek multiple copies of plans to assist with viewing of those documents, that 'view only' access should be given, provide facilities for members of the public to make copies under the various permitted exemptions under copyright legislation, (eg: fair dealing for research or study), and that councils should seek consent from the copyright owner to waive copyright.

Consideration

The applicant raised the issue of the fair dealing exemptions under sections 40 - 42 under the Copyright Act 1968 (Cth). In particular the applicant raised the issue that he should be able to access and make a copy of the work or reproduce it for the purposes of 'research or study' (section 40) or 'criticism or review' (section 41). However those sections refer to a particular type of work for the purposes of copyright protection.
Section 10 of the Copyright Act 1968 provides for the interpretation provisions, in effect a dictionary providing a meaning of terms for the purpose of considering them within a particular Act. In reference to the term 'artistic work' section 10 provides the following: "artistic work " means: (a) a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not; (b) a building or a model of a building, whether the building or model is of artistic quality or not; or (c) a work of artistic craftsmanship whether or not mentioned in paragraph (a) or (b);
In respect of the term 'literary work' section 10 provides the following definition: "literary work" includes: (a) a table, or compilation, expressed in words, figures or symbols; and (b) a computer program or compilation of computer programs.
In respect of a drawing, section 10 provides: "drawing " includes a diagram, map, chart or plan.
Sections 40 - 42 inclusive all refer to the terms 'literary' or artistic work (amongst others), when outlining the types of material under a copyright claim, which can be subject to a fair dealing exemption.
In my view, the architectural plans or drawings meet the definition of 'artistic works' to which section 40 - 42 refer. Section 73 provides a reference to the existence of pans and drawings in a construction context. COPYRIGHT ACT 1968 - SECT 73 Reconstruction of buildings (1) Where copyright subsists in a building, the copyright is not infringed by a reconstruction of that building. (2) Where a building has been constructed in accordance with architectural drawings or plans in which copyright subsists and has been so constructed by, or with the licence of, the owner of that copyright, that copyright is not infringed by a later reconstruction of the building by reference to those drawings or plans.
It appears clear that the Commonwealth Legislature intended the types of material for which these proceedings relate (drawings and plans of construction), to be matters for which a valid claim of copyright can be asserted and thereby (subject to adjudication elsewhere), such copyright subsists.
The critical aspect of these proceedings concerns not access, but the form of access to the information. These matters concern the GIPA Act, and various exemptions under both the Copyright Act 1968 and the Environmental Planning and Assessment Act 1979 would in my view be pertinent if the respondent was denying access to the material. The respondent is however not denying access to the material, merely restricting the manner of access, and inviting the applicant to take his own measures should he wish to rely on an exemption available under the copyright legislation.
It is not the role of this Tribunal to make determinative findings in respect of the copyright legislation, due to the lack of jurisdiction of the Tribunal. However the Tribunal may make a finding as to a precondition as to whether a third party is the true holder of the copyright, in order for a party to test the matter in a Federal jurisdiction. This occurred in the recent case of drew the Tribunal's attention to the case of Pycon Homes and Constructions Pty Ltd v Port Macquarie Hastings Council [2016] NSWCATAD 206 [at 70-71]. However the current proceedings do not seek such a finding, and as a result such a finding is not available.
There is no assertion in the current proceedings that the plans constitute a misappropriation of another's copyright, artistic or literary work or intellectual property.

Findings and conclusion

Having considered all of the evidence, submissions and material before me, I find that I must have significant regard to both section 6 (6) and section 72 (2) (c ) of the GIPA Act. 6 Mandatory proactive release of certain government information ….. (6) Nothing in this section or the regulations requires or permits an agency to make open access information available in any way that would constitute an infringement of copyright. 72 Forms of access (1) Access to government information in response to an access application may be provided in any of the following ways: (a) by providing a reasonable opportunity to inspect a record containing the information, (b) by providing a copy of a record containing the information, (c) by providing access to a record containing the information, together with such facilities as may be necessary to enable the information to be read, viewed or listened to (as appropriate to the kind of record concerned), (d) by providing a written transcript of the information in the case of information recorded in an audio record or recorded in shorthand or other encoded format. (2) The agency must provide access in the way requested by the applicant unless: (a) to do so would interfere unreasonably with the operations of the agency or would result in the agency incurring unreasonable additional costs, or (b) to do so would be detrimental to the proper preservation of the record, or (c) to do so would involve an infringement of copyright, or (Emphasis added)
I make a finding that (for the purposes of the GIPA Act), the plans and drawings central to the dispute between the parties, constitute information for which a valid claim of copyright could be made.
I note that such a claim has been made and the respondent as a result relies upon the provisions of sections 6 (6) and 72 (2) (c ) of the GIPA Act in respect of the form of access to the claimed information.
I find having regard to these legislative provisions, and in particular the guidance of the Information Commissioner via the Knowledge Update, and for all of the reasons outlined above, that the decision of the respondent should be affirmed.

Orders 1. The decision of the respondent dated 17 September 2015 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: 12 June 2018

The Legislative Provisions

The objects of the GIPA Act are as follows: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
The case of Mannix v Department of Education and Communities [2014] NSWCATAD 35 provides a useful outline of the approach under the GIPA Act. At paragraph 5 the following outline of the provisions is provided: 5. The objects of the GIPA Act as set out in s 3(1) are to advance the system and of responsible and representative democratic government by authorizing and encouraging public release of government information by agencies, giving the public an enforceable right to access to government information and providing that such access is restricted only when there is an overriding public interest against disclosure. 6. The term "government information" is given a wide meaning by s 4, being defined as "information contained in a record held by an agency". "Agency" is also defined in s 4 and includes "(a) a Government Department". It is not disputed that the Department of Education and Communities is such a department and is therefore an agency to which the legislation applies. 7. The Act establishes a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure: s 5. Applicants for access to government information have a legally enforceable right to be provided with access to it, unless there is an overriding public interest against disclosure: s 9. The GIPA Act overrides other statutory provisions that prohibit disclosure, apart from the "overriding secrecy laws" set out in schedule 1. In the case of those laws it is conclusively presumed that there is an overriding public interest against disclosure: ss11 and 14. 8. With respect to government information not covered by overriding secrecy laws, the Act establishes a principle that there is a public interest in favour of disclosure: s12(1). The category of public interest considerations in favour of disclosure is not limited: s 12(2). That subsection then sets out several examples of public interest considerations in favour of disclosure. 9. There can be an overriding public interest against disclosure only when the public interest test in s 13 is satisfied. It provides that "There is an overriding public interest against disclosure of the 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". 10. In considering whether there is an overriding public interest against disclosure, the tribunal is to be guided by s 15, which provides, relevantly for present purposes, that agencies must exercise their functions so as to promote the objects of the GIPA Act and must have regard to any relevant guidelines issued by the Information Commissioner.
The considerations in Mannix outline the usual process for access to government information. In the current matter the respondent has not relied upon any public interest considerations against disclosure (as per section 14), or at least not explicitly, but has based the decision on the form of access to material for which copyright is claimed.
In respect of the current application Section 80 (d) of the GIPA Act provides: 80 Which decisions are reviewable decisions The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part: ……. ……. ……. (d) a decision to provide access or to refuse to provide access to information in response to an access application,
The information sought was held by the respondent agency as part of its planning and development application (DA) records. That information is considered by the Government Information (Public Access) Regulation 2009 (the Regulation), as open access material. Schedule 1 of the Regulation lists the relevant material. Schedule 1 Additional open access information-local authorities (Clause 3) 1 Information about local authority (1) Information contained in the current version and the most recent previous version of the following records is prescribed as open access information: (a) … (b) … (c) … (d) … (e) … (f) ... (g) … (h) … (i) … (j) … (2) Information contained in the following records (whenever created) is prescribed as open access information: (a) … (b) … (c) … (d) … (3) Information contained in the current version of the following records is prescribed as open access information: (a) … (b) … (c) … (d) … (e) … (f) ... 2 Plans and policies Information contained in the current version and the most recent previous version of the following records is prescribed as open access information: (a) … (b) … (c) environmental planning instruments, development control plans and contributions plans made under the Environmental Planning and Assessment Act 1979 applying to land within the local authority's area. 3 Information about development applications (1) Information contained in the following records (whenever created) is prescribed as open access information: (a) development applications (within the meaning of the Environmental Planning and Assessment Act 1979) and any associated documents received in relation to a proposed development including the following: (i) home warranty insurance documents, (ii) construction certificates, (iii) occupation certificates, (iv) structural certification documents, (v) town planner reports, (vi) submissions received on development applications, (vii) heritage consultant reports, (viii) tree inspection consultant reports, (ix) acoustics consultant reports, (x) land contamination consultant reports, (b) records of decisions on development applications (including decisions made on appeal), (c) a record that describes the general nature of the documents that the local authority decides are excluded from the operation of this clause by subclause (2).
The GIPA Regulation then goes on to broadly excise certain documents from within the planning process (that contain the intellectual property of their authors) from the open access provisions. Schedule 1 Clause 3 subclause 2 states the following: (2) This clause does not apply to so much of the information referred to in subclause (1) (a) as consists of: (a) the plans and specifications for any residential parts of a proposed building, other than plans that merely show its height and its external configuration in relation to the site on which it is proposed to be erected, or (b) commercial information, if the information would be likely to prejudice the commercial position of the person who supplied it or to reveal a trade secret.
This provision effectively shifts 'detailed' construction plans and other material (for which intellectual property and copyright is claimed) from the characterisation of 'open access information' under the GIPA Act to the general characterisation of 'government information'. As such section 6 (concerning mandatory proactive release), does not apply to such information and the agency is to consider it like all other formal access applications under the GIPA Act. This may be the reason that the applicant submitted a formal GIPA Act application, following his informal release request.

At a glance

Court

Decision date

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)

Cited By (5)