NSW Civil & Administrative Tribunal Accepts Local Council’s Hand-Written Selective Search Results as Satisfying the
Legislative Requirements of the GIPA Act 2009, 25.07.2023
NCAT has accepted the hand-written and typed up notes within a Word Table as evidence Goulburn-Mulwaree Shire Council actually undertook searches for requested information in response to a valid access application under the Government Information (Public Access) Act 2009, GIPA.
The request originated from NSW Freedom of Information’s Telina Webb who asked Council for an unedited copy of its Meeting Notes concerning the instigating of legal action against a member of the public, Mr Alan Powell of Queanbeyan NSW sometime in 2014.
Goulburn-Mulwaree Shire Council had met at its premises with executive staff from Palerang Council and Queanbeyan City Council to discuss a number of issues, including the instigation of legal proceedings against Mr Powell for a Section 110 Restraining Order under the GIPA Act.
A Section 110 Order can be applied for by a NSW government agency when an agency determines an Access Applicant is taking up too much resources or is continuously lodging requests for information qualifying as unmeritorious. Unmeritorious applications are qualified as having no real prospect of success.
Within the NCAT’s Decision to grant the Section 110 Order against Mr Powell, the Tribunal states at its Paragraph 43, “When asked about why he had combined with Ms Timothy and Ms Ferguson in regard to this section 110 application, Mr Warne explained that when they were meeting in regard to other matters they had discussed the fact that there had been a number of access applications from the Respondent and that those applications were tying up considerable time and resources. They discussed the implications for the Applicants and decided that the section 110 application was warranted. When asked how Ms Timothy had reacted, he said that she had agreed with the course of action.”
At the NCAT’s preceding Paragraph 19 those involved and providing evidence towards the Section 110 Application are listed:a) Ms Deborah Ferguson, the Manager Executive Services of Palerang Council;b) Mr William Warne, the Executive Manager - Legal and Risk at Queanbeyan City Council;c) Ms Maria Timothy, the Manager Governance at Goulburn Mulwaree Council;d) Ms Alice Menyhart, the solicitor with the day to day carriage of the application.
Given the details of those particular paragraphs of the NCAT decision, Ms Webb expected there to be Minutes of the Meeting convened in part to address initiating legal proceedings against Mr Powell. However, in response to Ms Webb’s request Goulburn-Mulwaree Council determined the requested information was not held by it. Goulburn-Mulwaree Council provided lacklustre evidence it had acted in accordance with the legislative requirements concerning reasonable searches, with one officer providing a hand-written list of supposed records, and Ms Timothy providing a typed one. Both were entered into a Word Document Table absent of Council's letterhead. No evidence was provided to show any actual searches were undertaken, such as a printout or screenshot of the system searches. “What’s extremely concerning about this matter is that the Manager Governance of Goulburn-Mulwaree Council was negligent and in breach of the State Records Act 1998 if it is true no record was made about the instigation of formal legal action, for a meeting confirmed to have taken place at Council premises.
Each of the persons attending the hearing came together, in part, to discuss Mr Powell and his Access Applications, effectively sharing his personal information between them, with no evidence he gave any agency permission to do so, and then using that unlawful sharing of his personal information to instigate and succeed in legal action against him.
It is far too convenient that not one person recorded any Minutes of that meeting, effectively ensuring there was no evidence of what these executives were doing in the exercise of their public duties.
It was good enough for the Tribunal to accept the meeting had taken place, yet another Tribunal member accepted there were no records the meeting had in fact occurred,” stated Ms Webb.
“It’s another workable lesson to like-minded agency personnel and how to succeed in openly acting unprofessionally, by those with titles of governance or corporate police officer, where it’s revealed just how easy it is to breach legislation and then avoid accountability for such actions by ensuring there is no evidence of what’s occurred. These individuals collectively acted to pervert the course of justice by acting to breach a member of the public’s privacy in order to instigate legal action against him" she commented.
Ms Webb provided both the originating caselaw and a copy of Goulburn-Mulwaree’s Record Management Policy to support her expectation the requested information existed, but the Tribunal ignored any reasoning the Minutes of the Meeting were expected to exist.
Ms Timothy opted not to represent Council as is part of her day-to-day duties, nor did any Council in-house solicitor sit at the bar table but instead Ms Timothy tapped into public funding for external legal representation.
Requests for the same information were lodged with Palerang and Queanbeyan Councils who also determined no records of the Meeting existed. As with so many of the NSW public endeavouring to exercise their legally enforceable rights (supposed) to access government information, the blatant collective breaching of Mr Powell's privacy seems to be more regularly part of the agency's process when responding to valid requests for government information. Getting caught breaching the public's privacy and unlawfully sharing personal information is clearly a risk very much worth taking.
Contact:
Maria Timothy, (02) 4823 4467
Deborah Ferguson, 1300 735 025
William Warne, (02) 9320 2726
Alice Menyhart, (02) 6274 0911 Amanda Keegan, (02) 4823 4444
The request originated from NSW Freedom of Information’s Telina Webb who asked Council for an unedited copy of its Meeting Notes concerning the instigating of legal action against a member of the public, Mr Alan Powell of Queanbeyan NSW sometime in 2014.
Goulburn-Mulwaree Shire Council had met at its premises with executive staff from Palerang Council and Queanbeyan City Council to discuss a number of issues, including the instigation of legal proceedings against Mr Powell for a Section 110 Restraining Order under the GIPA Act.
A Section 110 Order can be applied for by a NSW government agency when an agency determines an Access Applicant is taking up too much resources or is continuously lodging requests for information qualifying as unmeritorious. Unmeritorious applications are qualified as having no real prospect of success.
Within the NCAT’s Decision to grant the Section 110 Order against Mr Powell, the Tribunal states at its Paragraph 43, “When asked about why he had combined with Ms Timothy and Ms Ferguson in regard to this section 110 application, Mr Warne explained that when they were meeting in regard to other matters they had discussed the fact that there had been a number of access applications from the Respondent and that those applications were tying up considerable time and resources. They discussed the implications for the Applicants and decided that the section 110 application was warranted. When asked how Ms Timothy had reacted, he said that she had agreed with the course of action.”
At the NCAT’s preceding Paragraph 19 those involved and providing evidence towards the Section 110 Application are listed:a) Ms Deborah Ferguson, the Manager Executive Services of Palerang Council;b) Mr William Warne, the Executive Manager - Legal and Risk at Queanbeyan City Council;c) Ms Maria Timothy, the Manager Governance at Goulburn Mulwaree Council;d) Ms Alice Menyhart, the solicitor with the day to day carriage of the application.
Given the details of those particular paragraphs of the NCAT decision, Ms Webb expected there to be Minutes of the Meeting convened in part to address initiating legal proceedings against Mr Powell. However, in response to Ms Webb’s request Goulburn-Mulwaree Council determined the requested information was not held by it. Goulburn-Mulwaree Council provided lacklustre evidence it had acted in accordance with the legislative requirements concerning reasonable searches, with one officer providing a hand-written list of supposed records, and Ms Timothy providing a typed one. Both were entered into a Word Document Table absent of Council's letterhead. No evidence was provided to show any actual searches were undertaken, such as a printout or screenshot of the system searches. “What’s extremely concerning about this matter is that the Manager Governance of Goulburn-Mulwaree Council was negligent and in breach of the State Records Act 1998 if it is true no record was made about the instigation of formal legal action, for a meeting confirmed to have taken place at Council premises.
Each of the persons attending the hearing came together, in part, to discuss Mr Powell and his Access Applications, effectively sharing his personal information between them, with no evidence he gave any agency permission to do so, and then using that unlawful sharing of his personal information to instigate and succeed in legal action against him.
It is far too convenient that not one person recorded any Minutes of that meeting, effectively ensuring there was no evidence of what these executives were doing in the exercise of their public duties.
It was good enough for the Tribunal to accept the meeting had taken place, yet another Tribunal member accepted there were no records the meeting had in fact occurred,” stated Ms Webb.
“It’s another workable lesson to like-minded agency personnel and how to succeed in openly acting unprofessionally, by those with titles of governance or corporate police officer, where it’s revealed just how easy it is to breach legislation and then avoid accountability for such actions by ensuring there is no evidence of what’s occurred. These individuals collectively acted to pervert the course of justice by acting to breach a member of the public’s privacy in order to instigate legal action against him" she commented.
Ms Webb provided both the originating caselaw and a copy of Goulburn-Mulwaree’s Record Management Policy to support her expectation the requested information existed, but the Tribunal ignored any reasoning the Minutes of the Meeting were expected to exist.
Ms Timothy opted not to represent Council as is part of her day-to-day duties, nor did any Council in-house solicitor sit at the bar table but instead Ms Timothy tapped into public funding for external legal representation.
Requests for the same information were lodged with Palerang and Queanbeyan Councils who also determined no records of the Meeting existed. As with so many of the NSW public endeavouring to exercise their legally enforceable rights (supposed) to access government information, the blatant collective breaching of Mr Powell's privacy seems to be more regularly part of the agency's process when responding to valid requests for government information. Getting caught breaching the public's privacy and unlawfully sharing personal information is clearly a risk very much worth taking.
Contact:
Maria Timothy, (02) 4823 4467
Deborah Ferguson, 1300 735 025
William Warne, (02) 9320 2726
Alice Menyhart, (02) 6274 0911 Amanda Keegan, (02) 4823 4444