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Council under the spotlight over unwinnable and excessive use of "legaling up"

The previous five year term of Council revealed major failings in their willingness to be open and transparent on a range of matters. Formal requests for information were generally met with reluctance, baseless refusals or bureaucratic lethargy. Even when a request was made under the Government Provision of Information Act (GIPA Act) to a third party such as NSW Sport the Council sought to block access to information, only to be told to pull its head in.

Anecdote after anecdote has revealed of a mindset that Council seemed to have to want to give as little information out as possible about its day to day operations.

Occasionally Council has been challenged and have been found wanting. But each challenge sees Council "legal up" with ratepayer money to contest the uncontestable.

The anecdote that follows is about a ratepayer who dared to say NO to paying a $360 fee and Council choosing to take it through "the courts" paying in excess of $7,000 in fees only to lose.

The story below is for the ratepayers, but it also a heads up to our new councillors that they are not being informed of the continued use of ratepayer funds to pay for legal challenges that gain little in any additional revenue, and, from time to time cost the ratepayer considerably when the case is lost for want of evidence or a failure in procedure.

In day's of old Council staff prepared and provided a monthly briefing of current legal actions that described, who, why and how much. Maybe it is time to bring back that scrutiny.


Eurobodalla Council secrecy "UNJUSTIFIED" says Information and Privacy Commission This week the NSW Administrative Appeal Tribunal (NCAT) handed down their findings about Eurobodalla Shire Council’s processing and handling of another request for information under the Government Provision of Information Act (GIPA Act).

A ratepayer seeking information about their water account resulted in Council being found to have misused the provisions of the GIPA Act with respect to obtaining an extension of time to process the application, and applying a gross misinterpretation of the meaning of ‘personal information’.

You can read the full finding of Walton v Eurobodalla Shire Council [2022] NSWCATAD 46 HERE

Nick Walton told The Beagle "Basically, it took Council employees a total of almost 30 business days to find 12 documents and charge the me a staggering $330 for the information.

"When in fact, as NCAT discovered, the ESC Right to Information Officer had actually conducted all of the searches for the information belonging to the me on day two of the initial twenty-day decision making period, and Council had misused the statutory power to obtain the extension of a further ten days.”

"In addition, Council refused to accept that the information being sought by the me met the definition of ‘personal information’.

"An independent review of the case was conducted by the NSW Information Commissioner (IPC), and the General Manager was aware that the extension of time to process the application from me was considered unjustified.“

On 10 November 2020 Mr Walton made an application under the GIPA Act for access to information held by the Council. The GIPA Act provides for an agency to determine a valid application within 20 working days.

On 22 December 2020 Mr Walton received a Notice of Decision about his application. As part of that decision the Council had applied the processing charge that they had calculated for dealing with the application.

Council say they were able to apply the processing charge ($360 less $30 paid as application fee) because they had completed the decision process within the extended period as provided by s 57 (2) of the GIPA Act.

Their opinion was that this meant that as they had completed the decision in 30 working days (due to the extension) rather than the standard 20 working days, any calculated processing charges could be legitimately levied.

If however the Council had not made the decision prior to Wednesday 23 December 2020, no fees could be levied against Mr Walton due to the operation of s 63 (4) of the GIPA Act. That is because a decision which has not been completed within the decision period is considered a deemed refusal under s 63 (1) of the GIPA Act.

On 7 December 2020 the Council notified Mr Walton that they had extended the decision period by a further 10 days because ‘records are required to be retrieved from a record archive’. The notification referred to the decision period being extended from 8 December 2020 until 22 December 2020.

In his request to the Information Commissioner Mr Walton outlined his concerns about the imposition of the processing charge. He relied on two main grounds, one being that the information that he sought was in his view his own personal information (in that it was predominantly about him not others), and that as the information sought was only six months old at the time of the application, such information should not have been archived and as a result there was no basis to extend the decision period by 10 working days.

If either of these grounds were made out the processing charge would no longer apply to his application.

Mr Walton told The Beagle "The General Manager, who is clearly responsible and accountable for the actions of Council employees, should have backed down over the questionable processing charge and given the information at no charge. It is difficult to understand why the General Manager would not accept the NSW Information Commissioners independent advice that Council employees were wrong.”

Mr Walton appealed to the NSW Administrative Appeal Tribunal (NCAT). He was unrepresented and Council was represented by a firm of lawyers.

The findings of NCAT show that Mr Walton has been vindicated in standing up to what he calls "the inappropriate behaviour of the Council employees".

In speaking to Mr Walton, he said he was very concerned and outraged that Council did not act in good faith, and that a Council Manager is able to authorise the expenditure of many thousands of dollars to defend an unwinnable case. He said, “I see a serious power imbalance when Council employees have unfettered access to money to defend their own decisions. The process itself is ‘unhinged’ from the main stream thinking about the importance of open and transparent government.”

In the lead up to the case being heard Mr Walton is of the opinion that Council refused or failed to comply with the Orders set by the Tribunal by serving documents outside the required time frames, and tried to introduce new information changing the story at the last minute. "This disgraceful behaviour speaks volumes about the calibre of Council, in the same way they failed to properly interpret the legislation in the first place”

"An adjournment was ordered by the Tribunal at the cost of Council, which undoubtedly and unnecessarily significantly increased the cost to the ratepayers. I am reliably informed that the firm of lawyers charge in the vicinity of $3,500 per day to represent Council at these hearings plus an hourly rate for research and preparation of the case. Would anyone in their right mind spend thousands of dollars to try and make someone pay a few hundred dollars? This is a highly questionable decision by Council employees.”

"Because the Council employees are not spending their own money and they don’t seem to be held to account; it just looks like they don’t care. Where was the cost benefit analysis? Where is the sound judgement? The ratepayers are now out of pocket thousands of dollars because of a decision to progress the matter by Council employees trying to make me pay a few $100s.”

"I will be asking the General Manager, in the interests of transparent (open) government, to make public the legal costs for this bungled case. Frankly, the whole of Council’s case defies logic - it is an outrageous waste of public money - it is nothing short of abusing public trust.”

"I call on the new councillors to ‘put their hands on the steering wheel’ and wrestle back control of the open and transparent reporting of legal costs, change the culture of the organisation for the benefit of the ratepayers and make Eurobodalla the best place in Australia to live by insisting we have the best people matched with the best systems and processes of government.” Mr Walton said.