Beveridge v Cessnock City Council [2020] NSWCATAD 306

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Beveridge v Cessnock City Council [2020] NSWCATAD 306 Hearing dates: 1 July 2020 Date of orders: 10 December 2020 Decision date: 10 December 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: S Goodman SC, Senior Member Decision: 1 In respect of proceedings 2020/83306, the Tribunal orders: (1) the decision of the respondent to impose a processing charge for dealing with access application 43/2019/116 is set aside and in substitution for that decision, it is determined that no processing charge is payable to the respondent in respect of access application 43/2019/116; (2) the decision under review dated 15 April 2020 is varied to allow the applicant access to the following information identified in the Schedule of Documents attached to that decision: (a) item 12 with respect to: (i) the first paragraph of the email sent at 2:26pm on 7 December 2016; (ii) the first and third pages of the document entitled 'Mail Out Report' and dated 7 December 2016; (b) item 13, other than to the extent that it contains name or address of any employee of the respondent (other than the applicant); (3) the decision of the respondent is otherwise affirmed. 2 In respect of proceedings 2020/83356 the Tribunal orders: (1) the decision of the respondent to impose a processing charge for dealing with access application 43/2019/114 is set aside and in substitution for that decision, it is determined that no processing charge is payable to the respondent in respect of access application 43/2019/114; (2) the decision under review dated 15 April 2020 is set aside with respect to the following information identified in the Schedule of Documents attached to that decision: (a) items 6, 8 and 9; (b) item 19, with respect to the document title 'Notification to Industrial Registrar of Industrial Dispute. Pursuant to Section 130', other than Attachment 1 thereto. (c) item 23; (d) item 27, with respect to: (i) the Service Improvement Executive Leadership Team Meeting Minutes dated 29 March 2017; (ii) the PowerPoint presentation titled 'Outdoor Pools Service Improvement Project Structure'; (e) item 29; (f) item 30 with respect to: (i) the information redacted from the second line of the email sent on 3 May 2018 at 1:46 pm; (ii) each of the two documents document titled 'Notification to Industrial Registrar of Industrial Dispute Pursuant to Section 130' other than Attachment 1 thereto; (g) item 35, with respect to: (i) the email from Mr Fitzpatrick-Barr to Mr Curtis dated 9 May 2018 (11.41am); (ii) the document title 'Notification to Industrial Registrar of Industrial Dispute. Pursuant to Section 130', other than Attachment 1 thereto; (h) item 40, with respect to the draft report prepared by Pinnacle Integrity; (i) items 45,48, 51,55, 56, 57, 58,59,60,61, 62, 63 and 64; (j) item 65, with respect to the draft report prepared by Pinnacle Integrity; (k) items 67,75 and 76; (3) the items identified in order 2 are remitted to the respondent for reconsideration with directions that: (a) in respect of items which the respondent has agreed to provide to the applicant, or in respect of which the Tribunal has determined are to be released to the applicant, the respondent is to redact the names and addresses of employees of the respondent (other than the applicant) not previously released, before releasing those items to the applicant; (b) in respect of the draft reports prepared by Pinnacle Integrity in items 40, 51,60 and 65: (i) the information redacted from the final report which was released in part to the Applicant in response to access application 43/2018/16, be redacted; (ii) any information which identifies a complainant or person who provided information in response to the investigation by Pinnacle Integrity, and which has not already been released, be redacted; (iii) the respondent is to consider any information which is contained in the draft reports prepared by Pinnacle Integrity but is not contained in the Final Pinnacle Report and whether such information should be released to the applicant; (c) in respect of items 48, 55, 56 and 59, the applicant be provided with access to the information which comprises parts of the Final Pinnacle Report and which is available to the applicant: (i) following reconsideration of items 40, 51, 60 and 65; or (ii) because it has previously been provided to the applicant; (d) such reconsideration is to be completed within 35 days of the date of these orders. (4) The decision of the respondent is otherwise affirmed. 3 In respect of proceedings 2020/83318, the decision under review is set aside and remitted to the respondent for reconsideration on the basis that the access application is an access application for all correspondence between the respondent and the United Services Union in relation to: (1) complaints or grievances made by persons other than employees of the respondent against the applicant, which took place between 30 December 2015 and 3 November 2017; (2) internal investigations of the applicant, which took place between 30 December 2015 and 3 November 2017; (3) external investigations of the applicant, other than the investigation conducted by Pendlebury Workplace, which took place between 30 December 2015 and 3 November 2017; (4) with such reconsideration to be completed within 35 days of the date of these orders. 4 The applicant's application for review is to be listed for directions on 28 January 2021 at 9.30am in respect to orders 2 and 3 Catchwords: ADMINISTRATIVE LAW – access to government information – access application – public interests in favour of disclosure – public interests against disclosure – whether overriding public interest against disclosure – whether to refuse to deal with application on the basis of a previous application for the information concerned Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Government Information (Public Access) Act 2009 Privacy and Personal Information Protection Act 1998 Cases Cited: Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53 Commissioner of Police v Danis [2017] NSWCATAP 7 Fire Brigade Employees' Union v Fire and Rescue (NSW) [2014] NSWCATAD 113 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Luxford v Department of Education and Communities (NSW) [2016] NSWCATAD 118 Macquarie University v Howell (No 2) [2009] NSWADTAP 19 Martin v Commissioner of Police, NSW Police [2005] NSWADT 23 McMahon v Director General, Department of Fair Training [2003] NSWADT 164 at [25] McMillan v Commissioner of Police, NSW Police Force Meacham v Commissioner of Police [2020] NSWCATAP 107 Miskelly v Transport for NSW [2017] NSWCATAD 207 Nature Conservation Council v Department of Trade and Investment, Regional Infrastructure and Services (NSW) [2012] NSWADT 195 Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [20] Transport for NSW v Searle [2018] NSWCATAP 93 University of New South Wales v McGuirk [2006] NSWSC 1362 Texts Cited: None cited Category: Principal judgment Parties: Robert Kenneth Beveridge (Applicant) Cessnock City Council (Respondent) Representation: Solicitors: Applicant (self-represented) Lindsay Taylor Lawyers (Respondent) File Number(s): 2020/00083306, 2020/00083318, 2020/00083356 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, the publication or disclosure of the parts of these Reasons marked 'NOT FOR PUBLICATION' is prohibited