FHG v Cumberland City Council [2021] NSWCATAD 379

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FHG v Cumberland City Council [2021] NSWCATAD 379 Hearing dates: 30 August 2021 and 7 October 2021 Date of orders: 23 December 2021 Decision date: 18 February 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: P H Molony, Senior Member Decision: (1) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 the publication or disclosure to the applicant or the public of paragraph 92 of these reasons is prohibited. (2) The Tribunal sets aside the decision made on internal review by Council with respect to the Applicant's access requests numbered 1, 2 and 3, and in its place orders that: (a) The applicant be provided with unredacted copies of the documents identified in Mr Karaki's statement of 14 July 2021 as documents numbered 5, 10, 11, 15, 16, 17, and 20; (b) The applicant is refused access to documents 1 and 6; and, (c) The balance of the access application be remitted for reconsideration in accordance with these reasons, which reconsideration shall include further searches and consideration of documents responsive to these requests, notably those which the Tribunal has indicated there are reasonable grounds for believing might exist. Such reconsideration to be completed by 30 January 2022. (3) The Tribunal remits for reconsideration in accordance with these reasons the Applicant's access request numbered 4, such reconsideration to be completed by 30 January 2022. (4) The Tribunal sets aside the decision made on internal review by Council with respect to the Applicant access request numbered 5 and, in its place, determines that information responsive to this request is already available to the applicant. Catchwords: ADMINISTRATIVE LAW – government information – access application – applications to be given wide scope - agency's failure to search for information sought – overriding secrecy laws - legal professional privilege –excluded information - whether overriding public interest against disclosure of information. Legislation Cited: Administrative Review Decisions Act 1997 Children and Young Persons (Care and Protection) Act 1998 Children's Guardian Act 2019 Civil and Administrative Tribunal Act 2013 Evidence Act 1995 Government Information (Public Access) Act 2009 Ombudsman Act 1974 Cases Cited: AIN v Medical Council of New South Wales [2015] NSWCATAP 241 Commissioner of Police, New South Wales Police Force v Barrett [2015] NSWCATAP 68 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 EDD v Secretary, Department of Communities and Justice [2019] NSWCATAD 255 Fitzpatrick v NSW Office of Liquor and Gaming [2010] NSWADT 72 H M & O Investments Pty Ltd v Ingram (No 1) [2011] NSWSC 550, Lonsdale v University of Sydney [2015] NSWCATAP 277 Toplace Pty Ltd v City of Parramatta [2021] NSWCATAD 14 Wojciechowska v Commissioner of Police [2020] NSWCATAP 257 Texts Cited: Desiatnik, Legal Professional Privilege in Australia, 3rd Ed (2016) Lexis Nexus Category: Principal judgment Parties: Applicant – FHG Respondent – Cumberland City Council Representation: Applicant – self represented Respondent – C. McFadzen Information Commissioner - File Number(s): 2021/0069505 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 the publication or disclosure to the applicant or the public of paragraph 92 of these reasons is prohibited.