GIPA Act case alert — Holman v Northern Beaches Council

Holman v Northern Beaches Council [2024] NSWCATAD 336

We successfully acted for the Northern Beaches Council in an administrative review of the Council’s decision relating to a GIPA request made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The GIPA request arose out of bush fire hazard complaints and accusations against the Applicant of unlawful land use and unapproved clearing, and the regulatory investigations that followed. The Council decided to release some documents in full, some in redacted form and others were refused.

The Applicant appealed the decision of the Council to the NSW Civil and Administrative Tribunal.  In a win for the Council, its decision was affirmed by Senior Member J D Little.

The balance of the public interest

There is a presumption in favour of disclosure of government information unless, on balance, there is an overriding public interest against disclosure, pursuant to ss 5 and 13 of the GIPA Act. Considerations in favour of disclosure include promoting discussion of public affairs, enhancing Government accountability and informing debate on issues of public importance, pursuant to s 12 of the GIPA Act. The Senior Member placed some, although limited, weight on the considerations in favour of disclosure, after taking into account the volume of information that had already been released to the Applicant.

The Senior Member cited Bailey v Commissioner of Police [2023] NSWCATAD 275, and considered that protecting the identity and personal details of members of the public who have provided information to the Council was a consideration against disclosure. Another consideration was prejudice to the Council’s environmental investigations, which is a public interest consideration against disclosure, pursuant to the Responsible and effective government Table under s 14(2) of the GIPA Act.

The Senior Member found that overall, the balance of the public interest weighed against disclosure, upholding the Council’s GIPA request decision.

Documents subject to legal professional privilege

There is an overriding public interest against disclosure of information subject to legal professional privilege, pursuant to s 14(1) and clause 5 of Schedule 1 of the GIPA Act. The Senior Member found that the Council was correct to refuse access to those documents that comprised legal advice, requests for legal advice or documents intended for use in existing or anticipated litigation.

Key takeaways

In an administrative review, the Council must overcome the presumption in favour of disclosure. Considerations such as confidentiality, prejudice to councils’ investigative functions and legal professional privilege weigh against disclosure when balanced against the public interest.

You can view the decision here.