NSW Local Council Discloses Extraordinary Costs for Repeated Failed Attempts to Restrain a
Member of the Public from Exercising Freedom of Information Rights,13.10.2021
Following on from the Office of the NSW Information & Privacy Commissioner’s (IPC) recent event, Right to Know Week 2021, an event which promotes the public’s legally enforceable right to access NSW government information, Port Stephens Council has disclosed it spent in excess of $201,000.00 of public monies in continued failed attempts to have one member of the public formally restrained from asking for information it held and exercising those rights.
The Section 110 Applications for Restraining Order under the GIPA Act 2009 were lodged by Port Stephens Council with the NSW Civil & Administrative Tribunal, NCAT, against Telina Webb a former resident of the Port Stephens Shire.
At present requests for NSW government information are lodged with NSW government agencies under the Government Information (Public Access) Act 2009, or GIPA Act.
Section 110 of the GIPA Act 2009 provides an agency the ability to seek an application to restrain the lodging of unmeritorious requests for information, against any member of the public. An unmeritorious request for information simply means a request that lacks merit, that is disqualified, by a formal agency decision, from being a valid request for information.
NSW government agencies keep a record of such applications and are thereafter able to apply for a Section 110 Restraining Order once three unmeritorious applications have been recorded against an identified individual within a period of two years. The three unmeritorious applications can be from one or more NSW government agencies, and as such agencies are on the record sharing the public’s personal information without their knowledge in order to achieve the three unmeritorious application numbers, required under the Act.
The IPC published Port Stephens Council’s participation and support of its recent Right to Know Week 2021 event which saw this year’s theme: “Open by Design – Integrity through greater transparency and accountability in government”, giving Council in return for its participation the status of Program Champion, albeit the IPC did not impose any qualifying criteria.
Port Stephens Council’s first attempt for a Section 110 Restraining Order against Ms Webb failed in 2017 when the NCAT dismissed Council’s application.
In December 2019, after a recommendation from Tribunal Member Francis Marks suggesting Council “revisit the Section 110 application”, Council filed a second Application which included a secondary component seeking an Order to Restrain Ms Webb from consorting with any other member of the public for the purposes of accessing information held by Port Stephens Council.
On that occasion the Hearing was before Francis Marks himself and as such it was no surprise to read his decision in March 2020 following the Hearing just twelve days prior.
Francis Marks issued his Section 110 Restraining Order with a life-time imposition, and additionally ordered that Ms Webb not consort with other individuals for the purposes of accessing information held by Port Stephens Council.
In granting Council’s Application that Ms Webb not consort with other individuals, Francis Marks acted outside of the NCAT’s jurisdiction and also outside of the GIPA Act 2009, where there is no mechanism for the Tribunal to exercise power to dictate the conversations between members of the public.
In June 2020 the Respondent to the proceedings, Freedom of Information Advocate Telina Webb, successfully appealed Francis Marks’ decision proving he had acted with bias.
The NCAT then remitted the Section 110 Application for Restraining Order to a secondary Tribunal Member in December 2020, resulting in the issuing of a new decision dismissing the Application in June 2021.
The June 2021 NCAT Decision made it abundantly clear Telina Webb had a legally enforceable right to access government information and that she had not used Council’s resources excessively, stating that 2.3 hours a week of Council’s time did not impede any other member of the public’s right to request Council information.
The request for information resulting in the disclosure of the amount of $201,000.00 spent by Port Stephens Council included the Council’s provision of approvals for expenditure at first instance.
Whilst Council responded to Ms Webb’s valid request for information by providing her partially redacted invoices and remittance notices for payment showing the extraordinary amount of $201,000.00 in public funds paid to external legal firms including a barrister, Council did not provide any approvals for the expenditure.
It was also noted that the invoices and remittance notices for payment were signed by Council’s Head of Legal Services Lisa Marshall and Council’s Governance Manager Tony Wickham, some of which were signed off within a few short minutes of their recorded time of receipt.
Ms Webb has lodged a request for administrative review of Council’s decision to refuse to provide the approvals for expenditure, with the IPC, in accordance with the GIPA Act 2009.
Current agency costs for Section 110 Applications for Restraining Orders are available at:https://nswfreedomofinformation.net/section-110/section-110-costs/ • Tony Wickham can be contacted on 0408 497 649• Lisa Marshall can be contacted on 0408 978 884
The Section 110 Applications for Restraining Order under the GIPA Act 2009 were lodged by Port Stephens Council with the NSW Civil & Administrative Tribunal, NCAT, against Telina Webb a former resident of the Port Stephens Shire.
At present requests for NSW government information are lodged with NSW government agencies under the Government Information (Public Access) Act 2009, or GIPA Act.
Section 110 of the GIPA Act 2009 provides an agency the ability to seek an application to restrain the lodging of unmeritorious requests for information, against any member of the public. An unmeritorious request for information simply means a request that lacks merit, that is disqualified, by a formal agency decision, from being a valid request for information.
NSW government agencies keep a record of such applications and are thereafter able to apply for a Section 110 Restraining Order once three unmeritorious applications have been recorded against an identified individual within a period of two years. The three unmeritorious applications can be from one or more NSW government agencies, and as such agencies are on the record sharing the public’s personal information without their knowledge in order to achieve the three unmeritorious application numbers, required under the Act.
The IPC published Port Stephens Council’s participation and support of its recent Right to Know Week 2021 event which saw this year’s theme: “Open by Design – Integrity through greater transparency and accountability in government”, giving Council in return for its participation the status of Program Champion, albeit the IPC did not impose any qualifying criteria.
Port Stephens Council’s first attempt for a Section 110 Restraining Order against Ms Webb failed in 2017 when the NCAT dismissed Council’s application.
In December 2019, after a recommendation from Tribunal Member Francis Marks suggesting Council “revisit the Section 110 application”, Council filed a second Application which included a secondary component seeking an Order to Restrain Ms Webb from consorting with any other member of the public for the purposes of accessing information held by Port Stephens Council.
On that occasion the Hearing was before Francis Marks himself and as such it was no surprise to read his decision in March 2020 following the Hearing just twelve days prior.
Francis Marks issued his Section 110 Restraining Order with a life-time imposition, and additionally ordered that Ms Webb not consort with other individuals for the purposes of accessing information held by Port Stephens Council.
In granting Council’s Application that Ms Webb not consort with other individuals, Francis Marks acted outside of the NCAT’s jurisdiction and also outside of the GIPA Act 2009, where there is no mechanism for the Tribunal to exercise power to dictate the conversations between members of the public.
In June 2020 the Respondent to the proceedings, Freedom of Information Advocate Telina Webb, successfully appealed Francis Marks’ decision proving he had acted with bias.
The NCAT then remitted the Section 110 Application for Restraining Order to a secondary Tribunal Member in December 2020, resulting in the issuing of a new decision dismissing the Application in June 2021.
The June 2021 NCAT Decision made it abundantly clear Telina Webb had a legally enforceable right to access government information and that she had not used Council’s resources excessively, stating that 2.3 hours a week of Council’s time did not impede any other member of the public’s right to request Council information.
The request for information resulting in the disclosure of the amount of $201,000.00 spent by Port Stephens Council included the Council’s provision of approvals for expenditure at first instance.
Whilst Council responded to Ms Webb’s valid request for information by providing her partially redacted invoices and remittance notices for payment showing the extraordinary amount of $201,000.00 in public funds paid to external legal firms including a barrister, Council did not provide any approvals for the expenditure.
It was also noted that the invoices and remittance notices for payment were signed by Council’s Head of Legal Services Lisa Marshall and Council’s Governance Manager Tony Wickham, some of which were signed off within a few short minutes of their recorded time of receipt.
Ms Webb has lodged a request for administrative review of Council’s decision to refuse to provide the approvals for expenditure, with the IPC, in accordance with the GIPA Act 2009.
Current agency costs for Section 110 Applications for Restraining Orders are available at:https://nswfreedomofinformation.net/section-110/section-110-costs/ • Tony Wickham can be contacted on 0408 497 649• Lisa Marshall can be contacted on 0408 978 884