This media release was temporarily suspended on 25th March 2024 due to threats of legal action. A copy of those threats along with our responses have since been published as a matter of public interest, noting Council has not replied.

Goulburn-Mulwaree Shire Council is back on the administrative external review merry-go-round after demanding yet again an advance deposit fee that is mathematically incorrect.

The access applicant Telina Webb of NSW Freedom of Information lodged her application for Council-held information asking for unredacted copies of payments made by Council for external training of the Government Information (Public Access) Act 2009, GIPA. This external training is intended to supplement existing skill sets and fill the gap of the apparent lack of legal knowledge many Right to Information Officers currently exhibit.

The GIPA Act 2009 is the state’s current freedom of information legislation replacing its predecessor the Freedom of Information Act 1989.This is not the first time Ms Webb has requested access to Goulburn-Mulwaree Shire Council records, with her previous application for an unredacted copy of Minutes referred to in a formal judicial decision disclosing Council is on the record breaching the State Records Act 1998. 

Council’s decision on that prior occasion revealed a key participant of the subject meeting held at the Goulburn-Mulwaree Council premises was its Governance Manager one Ms Maria Timothy (@Paragraph 43), who had met with senior executives from Palerang and Queanbeyan Councils for the purpose of collectively sharing the personal information of a member of the public to initiate an application for a restraining order against that individual.
These collective historical actions by each of the aforementioned agencies were undertaken by senior agency personnel to deliberately breach the public’s privacy.

Obviously these individuals had no hesitation in breaching the legislation and are now on the record doing so two-fold by first breaching privacy and secondly by not keeping accurate government records so as to cover their tracks. It is likely none of the meeting participants ever expected any scrutiny of their actions.

Neither of these Councils, Palerang-Queanbeyan or Goulburn-Mulwaree, are listed as Program Champions with the Office of the NSW Information & Privacy Commissioner's Right to Know Week 2023; a program supposedly championing the public's right to know what the NSW government is doing, with agencies embracing that right by ensuring compliance with the legislation and a willingness to be actively transparent.

As such, it was no surprise today to receive Council’s notice that it intended to procrastinate this latest valid access application, from the same applicant Ms Webb, with the imposition of an Advance Deposit under Section 68 of the GIPA Act 2009.

The GIPA Act 2009 stipulates Section 68 uses the term “may” by notice impose an advance deposit.
Section 68 does not use the term “shall” by notice impose an advance deposit.As such invoking Section 68 is one of discretion; it is not a legal requirement, it most definitely is not mandatory. Invoking that discretion is likely one of personal choice more than policy or procedure, where agency personnel are known to have a dislike for a particular applicant.

The Interpretations Act 1987 refers to the terms “may” and “shall” in Section 9, stating: 1) in any Act or instrument, the word “may”, if used to confer a power, indicates that the power may be exercised or not, at discretion, and 2) in any Act or instrument, the word “shall”, if used to impose a duty, indicates that the duty must be performed.

Clearly the decision to demand an advance deposit is a discretionary one. T

The progress of an access application automatically freezes by default until the payment is made. The NSW Civil & Administrative Tribunal did discuss this particular issue of agency discretion on 23rd May 2023 with a Senior Member agreeing with the public's proper interpretation of the word "may", upholding the public's objection to a seperate NSW Government Agency imposing conditions on the release of information which were discretion-based.
The public naturally expects officers invoking the clause to clearly articulate the discretion to do so, and refrain from giving the false impression it is a legislative requirement.
Likewise the public naturally expects any officer deciding to enforce Section 68 to be able to perform the most fundamental of mathematical calculations. 

When seeking 50% of an estimated overall cost of $90.00 for example, this particular Council has demanded a total advance deposit of $75.00 which includes the application fee of $30.00 for the first hour.
Council’s decision to invoke Section 68 has been referred to the Office of the NSW Information and Privacy Commissioner for external review where it is hoped the nominated officer has competency in both the legislation and maths.

Contact:

Amanda Keegan, (02) 4823 4444
Maria Timothy, (02) 4823 4444