Local Council Succeeds in Preventing Public Access to Falsified Records, 14.09.2022
The NSW Civil & Administrative Tribunal (NCAT) Appeal Panel has dismissed an Appeal to overturn its earlier refusal to Revoke Not-For-Publication Orders concerning an Application for Open Access Information Mandated for Release.
The Appeal resulted from the NCAT’s decision of 09 May 2022, which saw a Miscellaneous Application to Revoke the Not-For-Publication Orders issued by the Tribunal between 2017 and 2019. Those orders were encompassed and reiterated in a number of decisions, all of which concerned a request under NSW Freedom of Information Legislation to access Local Council records classified as open access information mandated for release.
The Council at the centre of those collective cases was Port Stephens Council, and the documents requested were the Objecting Submissions to the Council Development Application No: 483 of 2011. Council had published notices in the local media, had notified adjoining neighbours to the Development, and had in place policies and procedures, all of which categorised objecting submissions as open access and publicly available in line with the legislation.
However, Council’s Governance Manager Tony Wickham who also occupied the parallel role of Right to Information Officer, entered into an agreement with a member of the public in March / April 2012 to conceal and protect objecting submissions, an agreement Council continues to fight hard to honour and maintain to this date.
On this occasion the Appeal Panel were provided with documentary evidence by the Appellant, Council had not sought the consent of members of the public to use their personal information and records within NCAT proceedings, records which were submitted to aid Council’s case. Such actions are definitively in breach of current privacy legislation obligations.
Council had argued that documents provided to the Tribunal were expected to be protected from public release to “give the public peace of mind”, however the public on this occasion remain oblivious to the unlawful use of their personal information and records by Port Stephens Council.
The Appeal Panel determined to refuse leave for the new evidence to be admitted, but in contrast allowed Council’s solicitor Carlo Zoppo to include information he had trolled from the internet Site www.nswfreedomofinformation.net, leaving a question of whether or not it was Carlo Zoppo who was providing evidence or Council. Council itself did not make any appearance at either the Hearing of the Miscellaneous Application or the Appeal, although Council staff are documented as remotely logging into the proceedings.
Ultimately the Appeal was dismissed on all grounds, with the Appeal Panel inviting submissions from Council on the issue of costs. Tony Wickham is documented to conveniently approve legal expenditure and sign off on invoices placing him in a position of conflict of interest. He is also able to represent Council as part of his day-to-day duties at no charge to an opposing party. Engaging unnecessary legal services is a well-known strategy to ensure maximum likelihood of award of costs.
Freedom of Information Advocate Telina Webb, who acted as agent for her husband in the proceedings commented “Tony Wickham sought anonymity in the proceedings, used public monies for that personal purpose, and failed. He is proven to have made false and misleading statements about members of the public for his own gain and the gain of those that are successful in obtaining his favour. He has no hesitation in accessing the public’s personal information and using it for a purpose other than what it was provided for. It has always been important the Tribunal be reminded of the gross professional misconduct of Tony Wickham in his administration of the GIPA Act 2009 and when responding to the NCAT Act 2013. The records speak for themselves.
There can be no doubt he has used public monies to fight very hard to conceal his own unconscionable deeds. The public should be very wary of speaking out against this Council, about bringing misconduct out into the open, and for expecting to be able to exercise any legally enforceable right (supposed) to access government information particularly that which is open access in nature. This Council has a long history of punitive action against the public it serves and there is nothing to indicate that is going to change. This Council fully intends to keep its secrets hidden from public scrutiny and protect those that abuse their positions of authority and trust, which is precisely what occurred throughout these proceedings and its history.” Contact: Tony Wickham, (02) 4988 0187
The Appeal resulted from the NCAT’s decision of 09 May 2022, which saw a Miscellaneous Application to Revoke the Not-For-Publication Orders issued by the Tribunal between 2017 and 2019. Those orders were encompassed and reiterated in a number of decisions, all of which concerned a request under NSW Freedom of Information Legislation to access Local Council records classified as open access information mandated for release.
The Council at the centre of those collective cases was Port Stephens Council, and the documents requested were the Objecting Submissions to the Council Development Application No: 483 of 2011. Council had published notices in the local media, had notified adjoining neighbours to the Development, and had in place policies and procedures, all of which categorised objecting submissions as open access and publicly available in line with the legislation.
However, Council’s Governance Manager Tony Wickham who also occupied the parallel role of Right to Information Officer, entered into an agreement with a member of the public in March / April 2012 to conceal and protect objecting submissions, an agreement Council continues to fight hard to honour and maintain to this date.
On this occasion the Appeal Panel were provided with documentary evidence by the Appellant, Council had not sought the consent of members of the public to use their personal information and records within NCAT proceedings, records which were submitted to aid Council’s case. Such actions are definitively in breach of current privacy legislation obligations.
Council had argued that documents provided to the Tribunal were expected to be protected from public release to “give the public peace of mind”, however the public on this occasion remain oblivious to the unlawful use of their personal information and records by Port Stephens Council.
The Appeal Panel determined to refuse leave for the new evidence to be admitted, but in contrast allowed Council’s solicitor Carlo Zoppo to include information he had trolled from the internet Site www.nswfreedomofinformation.net, leaving a question of whether or not it was Carlo Zoppo who was providing evidence or Council. Council itself did not make any appearance at either the Hearing of the Miscellaneous Application or the Appeal, although Council staff are documented as remotely logging into the proceedings.
Ultimately the Appeal was dismissed on all grounds, with the Appeal Panel inviting submissions from Council on the issue of costs. Tony Wickham is documented to conveniently approve legal expenditure and sign off on invoices placing him in a position of conflict of interest. He is also able to represent Council as part of his day-to-day duties at no charge to an opposing party. Engaging unnecessary legal services is a well-known strategy to ensure maximum likelihood of award of costs.
Freedom of Information Advocate Telina Webb, who acted as agent for her husband in the proceedings commented “Tony Wickham sought anonymity in the proceedings, used public monies for that personal purpose, and failed. He is proven to have made false and misleading statements about members of the public for his own gain and the gain of those that are successful in obtaining his favour. He has no hesitation in accessing the public’s personal information and using it for a purpose other than what it was provided for. It has always been important the Tribunal be reminded of the gross professional misconduct of Tony Wickham in his administration of the GIPA Act 2009 and when responding to the NCAT Act 2013. The records speak for themselves.
There can be no doubt he has used public monies to fight very hard to conceal his own unconscionable deeds. The public should be very wary of speaking out against this Council, about bringing misconduct out into the open, and for expecting to be able to exercise any legally enforceable right (supposed) to access government information particularly that which is open access in nature. This Council has a long history of punitive action against the public it serves and there is nothing to indicate that is going to change. This Council fully intends to keep its secrets hidden from public scrutiny and protect those that abuse their positions of authority and trust, which is precisely what occurred throughout these proceedings and its history.” Contact: Tony Wickham, (02) 4988 0187