Local Council Executive Officer Lacks Fundamental Comprehension of Legislation, Accuses Freedom of Information Applicant of Posing a Serious Risk of Harm to Prevent the Legitimate Release of Open Access Mandated for Release Documentation, 09.08.2011
It’s all agreed, the Government Information (Public Access) Act 2009, acronymed as GIPA, is new. It’s only been around a couple of years. Its predecessor the Freedom of Information Act was much more difficult to navigate, was clunky, and laypersons found it hard to make sense of.
The new GIPA Act is also attached to the Government Information (Information Commission) Act 2009, acronymed as GIIC, created at the same time to align with GIPA, with the Commissioner having oversight of it and its delegated officers.
Expectantly, some might make allowances for some small inconsistencies in GIPA’s application as Right to Information Officers gradually gain experience and knowledge in its application.
However, newness cannot be used as an excuse for abuse of it.
Cue Port Stephens Council, located a couple of hours north of Sydney.
Its Executive Officer Tony Leslie Wickham holds other roles in parallel to this one including Right to Information Officer, Privacy Officer, Complaints Handling Officer, Code of Conduct Coordinator, and Joint Custodian of Secondary Employment he shares with in-house solicitor Lisa Helene Marshall.
Today Mr Wickham issued his Notice of Decision under the GIPA Act 2009 in response to a request to access Council records, Development Application (DA) records in fact.
Simple DA documents. The GIPA Act categorises such records as open access mandated for release free of charge. Parliament’s intention in doing so was to minimise corruption of development across the community: no more manipulative developers able to get their DA’s through NSW Local Councils in secret; no more opportunities for favouritism; no more secret handshakes or secret deals for those with long relationships with Local Council decision makers. At least that’s the concept. But for that concept to work it requires Council employees to act with integrity. The GIPA Act 2009 doesn’t cover that. So today innocent members of the Port Stephens community received Council’s decision on a request to access DA documents. They are Telina Webb and Paul McEwan. The story of their DA is a cautionary one. It tells a tale of Council control, favouritism, changing the rules of the game at any time that suits, locking the public out of decision-making concerning them directly. Webb and McEwan bought their dream home in November 2008, completed renovating the inside about a year later, then started making plans to upgrade the outside areas. In the meantime they had received a brochure from Council in their letterbox setting swimming pool safety requirements. They took it seriously. Obviously their swimming pool fencing was not compliant. The gate wasn’t functioning properly, the construction was poor, and the boundary fence forming part of that pool fencing was illegally low. The pool pump equipment was so close to the boundary fence it provided a climbing mechanism. An adjoining neighbour had installed reo-mesh on the top of the fence because it was so low; again a veritable free access-way to the pool. Any child could easily gain access. Strange how Council had approved this serious risk to public safety back in 2004.......….. So they attended Council’s Duty Planner not once, but three times over several months. Presenting conceptual plans and seeking Council’s guidance, they were completely open and honest about their intentions. They also consulted with one of the neighbours because the boundary fence concerned them. It might have to be upgraded after all. Council had clearly and repeatedly stated “this is not something Council is interested in.” Seemed straightforward enough. So they commenced their renovation inclusive of installing a privacy screen inside their property perimeter; this way the boundary fence did not need disturbing. However, despite the elderly female adjoining property owner initially agreeing with the intended privacy screen installation, she later had a change of mind. Not surprising given she was suffering with dementia. And so she contacted Port Stephens Council, claimed “Paul said he would kill me”, and yes you guessed it, Port Stephens Council decided to get involved demanding either the privacy screen now 80% complete be totally demolished, or a DA be lodged with Council. In order to try to understand what had happened, Webb and McEwan endeavoured to exercise their legal rights to access the DA records. Those records included the Objecting Submissions. And today Tony Wickham issued his decision the information would not be released because of a claim of a serious risk of harm to the community. “This matter is not over. We are totally confused by this outcome. First it was Council going back on its directions it had no interest in our project. Then it tells us put in a DA or demolish the structure. So we put in a DA and Council advertises it and invites Objecting Submissions. Mind you, Council cannot give retrospective approvals for completed works so we have no idea how it can invite Objecting Submissions on works it cannot determine. We've asked for those Submissions under legislation which provides for mandatory release. In fact, the Council Ads in the local Newspaper stated the Objecting Submissions would be released if requested. What has happened? To the whole DA process; the GIPA process? What is this risk of harm? Not one person has spoken to us about this, not one question, nothing. This is information which is supposed to be totally public. How are we to understand what the problem with our project is, if Council doesn’t share what the claimed issues are?” stated Telina Webb.
“This makes me extremely nervous. That someone can make a claim, that we’ve been accused and effectively convicted on something we have no information about, resulting in decisions that directly impact on us, is very dangerous for the community. For now we just have to get through this Council DA process; a process which they initially told us was not necessary. And now look. There are potential fines of over $1m. $1m! For a privacy screen!? A project Council stated it had no interest in?! I guess time will tell where this goes. We just have to get this DA finalised, that’s the goal at this point in time. False unfounded allegations will have to wait for now. But this decision today shows Tony Wickham has no idea whatsoever what open access information mandated for release means, and that can only mean the community can expect disastrous, unqualified, unlawful decisions from him in his role as Right to Information Officer. And can someone tell me what his qualifications are to label people as dangerous? And where is NSW Police to reign in this so-called danger to public safety? These are very early days but it's clear the only real threat to public safety at this point in time is Tony Leslie Wickham, and I confidently predict this guy is going to cost the community a great deal of public monies,” stated Webb.
The Council’s GIPA Notice of Decision is here. Contact: Tony Wickham: Tony.wickham@portstephens.nsw.gov.au
The new GIPA Act is also attached to the Government Information (Information Commission) Act 2009, acronymed as GIIC, created at the same time to align with GIPA, with the Commissioner having oversight of it and its delegated officers.
Expectantly, some might make allowances for some small inconsistencies in GIPA’s application as Right to Information Officers gradually gain experience and knowledge in its application.
However, newness cannot be used as an excuse for abuse of it.
Cue Port Stephens Council, located a couple of hours north of Sydney.
Its Executive Officer Tony Leslie Wickham holds other roles in parallel to this one including Right to Information Officer, Privacy Officer, Complaints Handling Officer, Code of Conduct Coordinator, and Joint Custodian of Secondary Employment he shares with in-house solicitor Lisa Helene Marshall.
Today Mr Wickham issued his Notice of Decision under the GIPA Act 2009 in response to a request to access Council records, Development Application (DA) records in fact.
Simple DA documents. The GIPA Act categorises such records as open access mandated for release free of charge. Parliament’s intention in doing so was to minimise corruption of development across the community: no more manipulative developers able to get their DA’s through NSW Local Councils in secret; no more opportunities for favouritism; no more secret handshakes or secret deals for those with long relationships with Local Council decision makers. At least that’s the concept. But for that concept to work it requires Council employees to act with integrity. The GIPA Act 2009 doesn’t cover that. So today innocent members of the Port Stephens community received Council’s decision on a request to access DA documents. They are Telina Webb and Paul McEwan. The story of their DA is a cautionary one. It tells a tale of Council control, favouritism, changing the rules of the game at any time that suits, locking the public out of decision-making concerning them directly. Webb and McEwan bought their dream home in November 2008, completed renovating the inside about a year later, then started making plans to upgrade the outside areas. In the meantime they had received a brochure from Council in their letterbox setting swimming pool safety requirements. They took it seriously. Obviously their swimming pool fencing was not compliant. The gate wasn’t functioning properly, the construction was poor, and the boundary fence forming part of that pool fencing was illegally low. The pool pump equipment was so close to the boundary fence it provided a climbing mechanism. An adjoining neighbour had installed reo-mesh on the top of the fence because it was so low; again a veritable free access-way to the pool. Any child could easily gain access. Strange how Council had approved this serious risk to public safety back in 2004.......….. So they attended Council’s Duty Planner not once, but three times over several months. Presenting conceptual plans and seeking Council’s guidance, they were completely open and honest about their intentions. They also consulted with one of the neighbours because the boundary fence concerned them. It might have to be upgraded after all. Council had clearly and repeatedly stated “this is not something Council is interested in.” Seemed straightforward enough. So they commenced their renovation inclusive of installing a privacy screen inside their property perimeter; this way the boundary fence did not need disturbing. However, despite the elderly female adjoining property owner initially agreeing with the intended privacy screen installation, she later had a change of mind. Not surprising given she was suffering with dementia. And so she contacted Port Stephens Council, claimed “Paul said he would kill me”, and yes you guessed it, Port Stephens Council decided to get involved demanding either the privacy screen now 80% complete be totally demolished, or a DA be lodged with Council. In order to try to understand what had happened, Webb and McEwan endeavoured to exercise their legal rights to access the DA records. Those records included the Objecting Submissions. And today Tony Wickham issued his decision the information would not be released because of a claim of a serious risk of harm to the community. “This matter is not over. We are totally confused by this outcome. First it was Council going back on its directions it had no interest in our project. Then it tells us put in a DA or demolish the structure. So we put in a DA and Council advertises it and invites Objecting Submissions. Mind you, Council cannot give retrospective approvals for completed works so we have no idea how it can invite Objecting Submissions on works it cannot determine. We've asked for those Submissions under legislation which provides for mandatory release. In fact, the Council Ads in the local Newspaper stated the Objecting Submissions would be released if requested. What has happened? To the whole DA process; the GIPA process? What is this risk of harm? Not one person has spoken to us about this, not one question, nothing. This is information which is supposed to be totally public. How are we to understand what the problem with our project is, if Council doesn’t share what the claimed issues are?” stated Telina Webb.
“This makes me extremely nervous. That someone can make a claim, that we’ve been accused and effectively convicted on something we have no information about, resulting in decisions that directly impact on us, is very dangerous for the community. For now we just have to get through this Council DA process; a process which they initially told us was not necessary. And now look. There are potential fines of over $1m. $1m! For a privacy screen!? A project Council stated it had no interest in?! I guess time will tell where this goes. We just have to get this DA finalised, that’s the goal at this point in time. False unfounded allegations will have to wait for now. But this decision today shows Tony Wickham has no idea whatsoever what open access information mandated for release means, and that can only mean the community can expect disastrous, unqualified, unlawful decisions from him in his role as Right to Information Officer. And can someone tell me what his qualifications are to label people as dangerous? And where is NSW Police to reign in this so-called danger to public safety? These are very early days but it's clear the only real threat to public safety at this point in time is Tony Leslie Wickham, and I confidently predict this guy is going to cost the community a great deal of public monies,” stated Webb.
The Council’s GIPA Notice of Decision is here. Contact: Tony Wickham: Tony.wickham@portstephens.nsw.gov.au