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GIPA Act 2009 Section 14, Table 3 (f)
* What is it? * What are the implications? * Why is it part of the Act? * Are agencies using it?
"In 2014, a NSW Local Council staff member wrote to the NSW Dept of Communities and Justice, making submissions on review of the GIPA Act 2009. She made clear QUOTE "Staff are not qualified or experienced enough to determine if a person is at risk of serious harm, harassment or intimidation, this should be left to the professionals" UNQUOTE"
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Section 14 Table 3 (f) is a powerful clause of the GIPA Act 2009 that covers a public interest consideration against disclosure, that is it gives a person with an interest or connection to a document a reason to prevent the release of the information or document. It is founded on a claim there is a risk to the public and / or certain members of the public, or NSW government agency personnel, if the requested information is released to an applicant.
However, such a claim might only be made if an agency has disclosed the personal details of the applicant, otherwise the claim is hard to apply. It must be specific. For example, a person with an interest in a particular document could not maintain a claim on Section 14 Table 3 (f) globally, that would be obsurd.
It is a clause that has serious implications for any person asking for government information.
And it is a clause of the legislation that has been completely abused by agency personnel in order for documents to be unjustly withheld from an applicant.
The first cases brought to the NCAT by Telina Webb and her husband Paul McEwan in 2016 encompassing (5) Applications for Review, McEwan v Port Stephens Council and Webb v Port Stephens Council, are primary examples of this kind of abuse of the legislation.
Firstly, several of the cases before the NCAT concerned open access information mandated for release, as they were listed in the GIPA Regulations 2009 (now 2018) Schedule 1, 3, 1, ".....any associated documents in relation to a proposed development....." and 1, 3, 1, (a), (vi) "submissions received on development applications". The documents were objecting submissions to a development application, Call up to Council records, development objector communications with Council, some of which are ordinarily published on the website of Port Stephens Council.
Port Stephens Council's Governance Manager Tony Wickham had refused McEwan's request for information in its entirety, based on the assumption that McEwan did not know the authors of the documents, that the documents contained medical records, but most alarmingly that providing him with the documents would expose those individuals to a serious risk of harm, harrassment or serious intimidation.
McEwan knew who the objectors were because he was already acquainted with the adjacent neighbors, one of which was a Council Committee Member at that time.
Despite McEwan pointing this out to Council, Tony Wickham refused to release the documentation.
Council applied the same clause of the GIPA Act 2009 to Webb's requests for information, as it had done earlier in 2013 also concerning open access information mandated for release.
Council expended a significant amount of public monies defending the cases with the NCAT, through the initial case, a successful appeal, and then a remittal hearing.
NCAT initially decided, based on written and verbal submissions given in a confidential session with Tony Wickham and Council's Head of Legal Services Lisa Marshall, a session which excluded McEwan and Webb, that Council's reliance of Section 14 Table 3 (f) was completey justified.
The presiding Member then transfered the Section 14 Table 3 (f) justification to Webb, stating QUOTE "The evidence in one is the evidence in all" UNQUOTE, making it clear both applicants were guilty by association. The matters before the tribunal on that day comprised predominantly open access information mandated for release. Both Tony Wickham and Lisa Marshall knew the allegations were false and misleading, and both knew the allegations originated from Tony Wickham at first instance.
The presiding Member did not ask either Webb or McEwan a single question pertaining to the allegation by Wickham and Marshall they posed a serious risk of harm, harassment or serious intimidation to any person.
The presiding Member also prevented any cross-examination of Wickham on this crucial issue.
McEwan and Webb had lodged their applications with NCAT in mid 2016, and with the following succesful appeals, and eventual remittal, Council eventually released some of the requested information but has still not released the objecting submissions to McEwan.
So how did Port Stephens Council manage to convince an NCAT Tribunal Member that McEwan, and Webb as a result, posed such a serious risk of harm to the authors of the requested information?
Documentation released to McEwan and Webb in mid 2019 revealed that one of the authors of the objecting submissions approached Council's Tony Wickham personally in May 2012 before lodging the objecting submission, and the ensuing correspondence revealed Tony Wickham had suggested to the person to use Section 14 Table 3(f) to prevent the document's release.
Tony Wickham would go on to reassure the person "if the Commissioner (IPC) should make any enquiries, Council will respond. And staff have been instructed nothing's to get past me." In other words, should the IPC contact Council about the withholding of the documents, Council will take care of it, and staff will not release anything without my approval.
And that is what occured.
There is no evidence whatsoever Tony Wickham advised this person of Council's statutory and mandatory obligations to make objecting submssions and other associated documents available to the public in accordance with the GIPA Act 2009.
Neither is there any evidence whatseover Tony Wickham advised this person that it was a criminal offence to make false allegations against any person. But how could he, when it was he that suggested it?
In February 2015, prior to McEwan lodging his request for review with the NCAT, he had first contacted the IPC, informing it that Council was refusing to release information marked for mandatory release.
The IPC as a result did contact Port Stephens Council, and indeed as promised, Tony Wickham responded.
Tony Wickham falsely informed the IPC the documents had been withheld from McEwan because they had also been withheld from Webb several years prior, on the basis of Section 14 Table 3 (f), and that as a result of them being married, the same decision had been applied second time around. This was a default decision against McEwan because no formal consideration had yet been applied, as Council had informed McEwan it would not accept a formal GIPA application from him in relation to the subject documents.
In March 2015 Tony Wickham falsely informed the IPC that apprehended violence orders had been issued against Webb and McEwan, that police had been called to their neighborhood due to disturbances involving them, that they had personally attacked Council staff, and that they presented a serious risk to public safety.
That document was kept hidden for several years under the GIPA Act 2009 Exempt Information Clause, of which Tony Wickham as Council's subject matter expert was fully aware. However Council solicitor Carlo Zoppo provided an unredacted copy of it to Webb.
This is how Tony Wickham was initially successful in his claim he was justified in withholding the information from Webb in 2013, and later McEwan in 2015, McEwan and Webb in 2016. And he did so on the basis the IPC did not challenge him, and via an unchallenged confidential session with a Tribunal Member who trusted Council's representations to be truthful.
Tony Wickham had made a committment to a member of the public, he had suggested the use of Section 14 Table 3 (f), and when the time came, he provided false and misleading information, first to the IPC, then to the NCAT, to complete the agreement. He also provided the letter to the NSW Anti-Discrimination Board, and to the NSW Office of Local Government. There is no evidence any person questioned Tony Wickham about the allegations he had made.
And throughout the entire "process" not one agency or judicial member enquired of McEwan and Webb as to the validity of the claims.
McEwan and Webb have provided several opportunities to the NCAT to peruse their police records and forensic risk assessment reports, on a confidential basis, and no person has done so.
There are many, many questions that need to be asked about this Section of the GIPA Act 2009, and this Site will provide opportunities to do that. Topics and questions will include:
* Why are agencies permitted to rely on Section 14 Table 3 (f) in relation to documents that are open access and mandated for release?
* Why are agencies such as the IPC and the NCAT NOT requiring evidence for reliance on this dangerous clause? * Why didn't the IPC or the NCAT question either Webb or McEwan about these serious claims? * Why didn't the NCAT, at least, question Tony Wickham out in the open and facilitate some degree of equality between the parties?
On consideration of Section 3 – Object of Act, which highlights the legally enforceable rights of the public to access government information, Section 14 Table 3 (f) completely contradicts and denigrates those rights, and at present the GIPA Act 2009 Section 55 (6) states an agency is not required to validate anything, they don't need evidence under the current terminology.
The result of Tony Wickham's deliberate actions, to suggest the use of Section 14 Table 3 (f), to reassure the person Council would respond to any enquiries, and then to write a false and misleading letter he knew to be so, was caselaw that purposely criminalised members of the public for acting on a piece of legislation that sets out their fundamental rights. There is also the cost to the tax payer for NCAT proceedings that never should have eventuated. This kind of behaviour is consciously designed to criminalise asking for government information and uses public monies to do so. The application of Section 14 Table 3 (f) may be necessary in cases that embody family law court issues, family and domestic voilence issues, child custody or safety, or guardianship. In those instances there may be some legitimate concerns about the safety of those involved, and it may be prudent to withhold some documents. But it should never be able to be relied upon for open access information mandated for release, documents covered by such classification in order to prevent the occurrence of corruption, particularly in Local Government where key connections are regularly made between property developers and Council Planning Officers. In the cases of Webb and McEwan, there can be no doubt the person posing the risk was at all times Tony Wickham, who used the legislation for ulteria motives, to give personal favour to a member of the public, in order that a particular outcome could be achieved, eventually using a significant amount of public monies to do so. The later case of McEwan v Port Stephens Council would completley and rightfully exonerate McEwan, when the Tribunal stated "there is not a a scintilla of evidence McEwan posed the risk claimed by Council". McEwan had introduced Tony Wickham's false and misleading letter to the Tribunal which saw Council's barristers Brenda Tronson and Matthew Cobb-Clark desparately and shamefully claim there was a risk McEwan might commit identify fraud if the information was released to him. Again, McEwan was asking for open access information mandated for release. The information the subject of this later NCAT matter concerned mandatory Interest Disclosures and Council's Secondary Employment Register, documents that evidenced Council Planning Managers were employing Council staff in their own private Town Planning Consultancies, and revealed Interest Disclosures mandated under the Local Government Act 1993 Section 440 - Code of Conduct, were not being submitted to Port Stephens Council. Such documents are entrusted to Tony Wickham, and had never before been made available to any member of the public. Whilst McEwan appreciated being exonerated on that last occasion, the damage by Port Stephens Council to that point in time had been well and truly effected. Council Annual Reports indicate costs for these proceedings, that is Council's defence to releasing open access information mandated for release free of charge, in the vicinity of $122,000.00 of public monies. The public has the right to ask who is approving this level of expenditure, for legal defences in the prevention of release of documents that are categorised as open access information mandated for release, when the claim of a risk of harm has been fabricated. Council has released invoices and remittance notices recording Tony Wickham is a primary and regular approver for payment.
There are many, many questions that need to be asked about this Section of the GIPA Act 2009, and this Site will provide opportunities to do that. Topics and questions will include:
* Why are agencies permitted to rely on Section 14 Table 3 (f) in relation to documents that are open access and mandated for release?
* Why are agencies such as the IPC and the NCAT NOT requiring evidence for reliance on this dangerous clause? * Why didn't the IPC or the NCAT question either Webb or McEwan about these serious claims? * Why didn't the NCAT, at least, question Tony Wickham out in the open and facilitate some degree of equality between the parties?
On consideration of Section 3 – Object of Act, which highlights the legally enforceable rights of the public to access government information, Section 14 Table 3 (f) completely contradicts and denigrates those rights, and at present the GIPA Act 2009 Section 55 (6) states an agency is not required to validate anything, they don't need evidence under the current terminology.
The result of Tony Wickham's deliberate actions, to suggest the use of Section 14 Table 3 (f), to reassure the person Council would respond to any enquiries, and then to write a false and misleading letter he knew to be so, was caselaw that purposely criminalised members of the public for acting on a piece of legislation that sets out their fundamental rights. There is also the cost to the tax payer for NCAT proceedings that never should have eventuated. This kind of behaviour is consciously designed to criminalise asking for government information and uses public monies to do so. The application of Section 14 Table 3 (f) may be necessary in cases that embody family law court issues, family and domestic voilence issues, child custody or safety, or guardianship. In those instances there may be some legitimate concerns about the safety of those involved, and it may be prudent to withhold some documents. But it should never be able to be relied upon for open access information mandated for release, documents covered by such classification in order to prevent the occurrence of corruption, particularly in Local Government where key connections are regularly made between property developers and Council Planning Officers. In the cases of Webb and McEwan, there can be no doubt the person posing the risk was at all times Tony Wickham, who used the legislation for ulteria motives, to give personal favour to a member of the public, in order that a particular outcome could be achieved, eventually using a significant amount of public monies to do so. The later case of McEwan v Port Stephens Council would completley and rightfully exonerate McEwan, when the Tribunal stated "there is not a a scintilla of evidence McEwan posed the risk claimed by Council". McEwan had introduced Tony Wickham's false and misleading letter to the Tribunal which saw Council's barristers Brenda Tronson and Matthew Cobb-Clark desparately and shamefully claim there was a risk McEwan might commit identify fraud if the information was released to him. Again, McEwan was asking for open access information mandated for release. The information the subject of this later NCAT matter concerned mandatory Interest Disclosures and Council's Secondary Employment Register, documents that evidenced Council Planning Managers were employing Council staff in their own private Town Planning Consultancies, and revealed Interest Disclosures mandated under the Local Government Act 1993 Section 440 - Code of Conduct, were not being submitted to Port Stephens Council. Such documents are entrusted to Tony Wickham, and had never before been made available to any member of the public. Whilst McEwan appreciated being exonerated on that last occasion, the damage by Port Stephens Council to that point in time had been well and truly effected. Council Annual Reports indicate costs for these proceedings, that is Council's defence to releasing open access information mandated for release free of charge, in the vicinity of $122,000.00 of public monies. The public has the right to ask who is approving this level of expenditure, for legal defences in the prevention of release of documents that are categorised as open access information mandated for release, when the claim of a risk of harm has been fabricated. Council has released invoices and remittance notices recording Tony Wickham is a primary and regular approver for payment.