Council releases information after NCAT proceedings
Published on 20 August 2024
Council has recently been subject to two legal proceedings in the NSW Civil and Administrative Tribunal (NCAT), following two disputes submitted by ‘the applicant’ in relation to the release of information under the Government Information (Public Access) Act 2009 (GIPA Act).
The two matters related to the release of a “Police Report” (email) in relation to a matter raised at the November 2022 Council Meeting, and the Deed of Separation for the former General Manager.
“Council has tried to avoid the cost of litigation. However, the applicant had chosen to take these matters to a hearing at NCAT, which meant that Council has had to engage lawyers to prepare and submit evidence from Council officers,” said Council’s General Manager Melissa Boxall.
Police Report (email)
In November 2023, Council received an application for access to a police report, relating to a matter in September 2022. The police report (email) contained details of a Council employee’s conduct and behaviour in undertaking their duties.
The email from the NSW Police Force included a specific request to keep the email confidential and was provided to Council to assist management in assessing the conduct and performance of staff.
NSW Police Force had investigated the matter and determined that there were no criminal offences committed, or any criminal intent, by the staff member in carrying out their duties. During consultation the NSW Police Force continued their stance, objecting to the release of the email and information until April 2024, when they advised that their position had changed.
“During this entire ordeal, Council has had the wellbeing of all persons involved in front of mind. As Police determined no criminal offences or criminal intent by staff in carrying out their duties, Council officers were managed as any operational incident would be,” said Ms Boxall.
“We hold a duty of care and responsibility for employee’s wellbeing and safety in the workplace,” Ms. Boxall continued.
Following a change in the Police’s position regarding the release of information and further consultation with affected parties, Council agreed to release the information in April this year. The applicant refused to accept the proposal and continued with their submission to NCAT.
On Friday 24 May 2024, the applicant, two Council officers and Council’slegalrepresentation attended the Tribunal. The applicant made allegations of systemic issues with Council’s decision-making processes.
The allegations were strenuously denied by the Council and Senior Member Dean of NCAT agreed stating, “I see no systemic issues in that process; merely an unsuccessful search and changes in circumstances to which the Respondent (Council) was responsive.”
Following the hearing, Council received an order to provide the Police Report (email) to the applicant within 30 days. The applicant has now been given the document that Council previously offered to provide many months ago.
“Persons involved have been notified of the outcome to ensure they are aware that the details could be made public if the applicant chooses to do so,” said Ms Boxall.
“It was a series of unfortunate events, which has cost all involved more time, energy, and resources than it ever should. The incident in question was dealt with, due process was followed taking into consideration parties involved, and staff have been managed appropriately. Council feels that any parties involved should not need to unnecessarily keep re-living the incident,” Ms. Boxall concluded on the matter.
Deed of Separation Matter
In relation to Council’s former General Manager’s Deed of Separation, it is the applicant’s position that it should be released in its entirety. However, Council strongly believes that a redacted copy is more appropriate for release, allowing personal information to remain confidential.
In addition, as the applicant is also a Councillor, he has been offered the opportunity to view the document on a number of occasions if he signed a confidentiality agreement. However, the applicant declined and an application for the information under the GIPA Act was made.
Once information is released under the GIPA Act, Council is unable to control how that information is used or shared, and it effectively becomes available to the world at large.
“Council always takes seriously its responsibility to protect the privacy of sensitive information it holds. Council’s position is to continue to promote the public’s right of access to information, whilst protecting sensitive information held by the Council,” said Ms Boxall.
On this matter, Council was required to reconsider in accordance with the recommendations of NCAT.
“Council has undergone a Public Interest test on the document, balancing the public interest considerations in favour of disclosure with the public interest considerations against disclosure, as well as consulting further with impacted third parties. Based on these factors, Council has made a new decision in relation to the release of the document,” explained Ms Boxall.
“Council will continue to zealously protect the confidential information that it holds to ensure public confidence in the good governance of the Shire” Ms Boxall said