Why is Council going to extreme efforts to block a Freedom of Information request for its Mackay Par
It was revealed at Tuesday's Council meeting that the General Manager of Eurobodalla Council, by delegated authority of the councillors is going to extreme measures to stop the community from seeing the grant application that Council presented to the NSW Department of Sport for the Mackay Park Leisure Centre. The presentation on Tuesday by Jim Bright left most of the councillors speechless asking no questions at all indicating that those councillors are either complicit with the extreme efforts to block access or are simply not advised of the actions as they are considered 'Operational Matters'. Fortunately for Mr Bright however both Councillors Mayne and McGinlay took notice of the weight of the presentation with Clr Mayne asking "you said council not releasing is contrary to best practice - could you just explain that. "What grounds is council saying that they will not release the grant application to you" and "What outcome do expect from your presentation? from with Councillor McGinlay then saying "How about I ask for a briefing on this at the next councillor briefing session?" This is Mr Bright's presentation during Public Access which is not webcast. EUROBODALLA SHIRE COUNCIL PUBLIC ACCESS PRESENTATION -26 FEBRUARY 2019
My name is Jim Bright. I'm a resident of Narooma.
I'm here today to provide councillors with an update on progress with my formal 'freedom of information'' request to the NSW Office of Sport for a copy of the ESC's application for a grant towards the cost of construction of the proposed aquatic centre in Batemans Bay. That grant application was made in 2017 under the provisions of the NSW government's Regional Sports Infrastructure Fund.
Some of you might recall that I appeared here in a public access session early last year to advise you that, on 14 March 2018, the Office of Sport had determined that it was appropriate under the State's 'foi' legislation that I (and therefore the general public) should be given access to copy of our council's grant application (with some redactions). However, Sport also advised me that, at that stage, they weren't able to immediately release the document to me because a 3rd party (later revealed to be this council) had objected to Sport's decision.
Well, things can move at glacial pace on these matters – particularly if there are any recalcitrant parties involved.
Shortly after I gave you that report almost a year ago, this council formally requested an 'internal review' by Sport of its earlier decision to release the grant application to me. And on 27 April last year Sport accepted the council's arguments and decided that the document should not be publicly released at that time.
I chose not to challenge that particular decision in the Civil and Administrative Tribunal. My reasons for not challenging were mainly based on my understanding that the document would probably become publicly available a few months later in early September of last year. However, that information proved to be wrong and so, on 19 October, I was forced to lodge a new 'foi' request with the Office of Sport.
In response to that request, on 30 November last year Sport formally decided that I should be given a copy of the grant application (with some redactions).
Once again, this council disagreed with that decision and again sought a formal 'internal review' of Sport's decision.
However, on this occasion, Sport rejected the ESC's arguments and on 21 January this year formally ruled that its November 2018 decision to release the document would stand and, as a consequence, I was scheduled to get the document on 12 February – unless, of course, the council chose to exercise its entitlement to appeal against Sport's decision to the NSW Civil and Administrative Tribunal.
As would be no real surprise to many of this shire's council-watchers, such imminent transparency was not to be condoned by the council and it mounted a case to the Information Commission that the deadline for a decision on any appeal against Sport's decision should be in late March, not early February. The Information Commission apparently accepted that the council's view was technically correct. Of course, the implications of this is that the public can't now get to see a copy of the council's grant application until at least the second half of March - unless the council was to advise the Office of Sport that it has decided not to appeal against Sport's decision.
The advice that I got by email at 12.40pm yesterday from the Office of Sport (a full five weeks after Sport handed down its decision) was that the ESC had not yet either lodged an appeal with NCAT nor advised Sport that it was not intending to do so.
Now let's just have a think about this.
Since at least November last year, the council has had the full terms of Sport's release decision available to it. The recent January review decision didn't change the original decision – it merely confirmed it.
It is therefore simply impossible for the council not to have been in a position by now - either to have lodged an appeal with NCAT (and then get on with the resulting process) or to have notified Sport that it would not be appealing - so as to allow the immediate public release of the document in question. (In fact, in the circumstances, the council would easily have been in a position to have done one of those two things by the original deadline of 11 February.)
There is no doubt that what is happening here is a decision by someone in this council to drag this process out as long as possible.
I know - and everyone else who has been involved knows – that it is inevitable that the 'FOI' legislation and associated processes will eventually ensure the public release of the council's grant application.
What is happening here is unquestionably contrary to the basic standards of public sector good conduct and administration - and therefore contrary to the public interest. Councillors, as the elected representatives of the public, need to step up and demand a detailed explanation from the general manager and, if it appears to be necessary, you need to be sourcing competent independent advice about that explanation.
Thank you for your time.
Above: This is NOT the first time that Council have gone to extreme lengths to block public access to public documents. At each attempt, in the end, they have failed and the documents have been released. Why go to such lengths? We will soon find out as the grant application to the Federal Government is also sought under Freedom of Information.