NCAT rejects application for Local Government documents

The NSW Civil and Administrative Tribunal has handed down its decision on a GIPA application [the NSW equivalent to Freedom of Information laws] seeking documents from the Office of Local Government [the OLG]. In Robertson v Deputy Secretary, Local Government, Planning and Policy [2022] NSWCATAD 147, a local government union offical sought documents created as part of the disciplinary process for a local government councillor. The OLG had previously conducted an investigation into that councillor.

The Office of Local Government relied upon an exception in the GIPA Act which excluded information relating to the complaint handling and investigative functions of the OLG. The OLG contended that the report and any records of its consideration in making the decision to impose the disciplinary action on the Councillor ‘related to’ the complaint handling and investigation process. In those circumstances, the Office submitted that the Tribunal was precluded by the GIPA legislation from considering the public interest test in the Act at all.

The applicant submitted that while the investigation process itself was excluded information, the resulting reports and decision-making processes were not. 

The Tribunal found that because the preparation of a departmental report is a precursor to disciplinary action pursuant to either ss 440H(5) or 440H(5A) of the Local Government Act [the LGA], it would clearly ‘relate to’ the investigative functions of the Respondent, because such a report would be prepared ‘in relation to an investigation’ under s 440H of the LGA. 

In reaching that conclusion, the Tribunal found that the preparation of the departmental report and the documents forming the basis of the OLG’s decision making with respect to the imposition of disciplinary action formed part of the practice and processes of the OLG in exercising its complaints handling and investigative functions under the LGA.

Accordingly, the Tribunal held that the documents were excluded and the access for application was not valid.

The decision shows the significant tension between competing principles behind the GIPA legislation. What were once described as the nation’s best Freedom of information laws appear to be subject to very significant and broad exceptions. 

A copy of the decision can be found at https://www.caselaw.nsw.gov.au/decision/18096cdc3bf987da134a0391