Geoff Helisma
The NSW Information and Privacy Commission (IPC) has adjudged Clarence Valley Council (CVC) to have “conflated GIPA [Government Information (Public Access) Act] provisions when notifying” Yamba resident Lynne Cairns, in relation to her request for documents associated with unauthorised building works at Gumnut Road, Yamba.
The IPC recommended that CVC “consider” training its staff, regarding the “GIPA Act and administrative decision making”.
The works were approved retrospectively at the May 2021 CVC meeting – councillors Baker, Lysaught, Ellem, Kingsley and Simmons backed the CVC officer’s recommendation to approve or “conditionally” approve “modifications” to the original 2019 development application; councillors Novak and Clancy were opposed (councillors Williamson and Toms were absent).
However, following the decision, councillors Novak, Toms and Clancy lodged a recission motion, which was subsequently defeated at the June CVC meeting, with the six other councillors rejecting the motion.
In the background, the NSW Ombudsman was “undertaking preliminary enquiries … about a complaint from a ratepayer”, acting general manager Laura Black told the Independent at the time.
She said the rescission motion “bears no relation to the ombudsman’s enquiry, at the moment”.
Ms Cairns’ story began in November 2020 when she notified CVC that she believed unlawful building works were being carried out at a Gumnut Road address; an onsite meeting took place on December 16 and CVC conducted a site inspection in February 2021, the report to the May CVC meeting stated and, “in response to community feedback”, CVC subsequently “wrote to the [DA] applicant requesting that they lodge a Section 4.55 application to modify the development consent”.
Three submissions against the DA included a 40-signature petition.
Meanwhile, Ms Cairns had emailed Ms Black, seeking 15 documents – of which she received 12.
Come April 14, Ms Cairns emailed general manager Ashley Lindsay and all councillors, requesting a copy of a survey, however, Mr Lindsay advised Ms Cairns to lodge a GIPA request.
Ms Cairns also emailed a formal complaint letter to the mayor, Jim Simmons, writing, “it appears council is breaching the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) and the GIPA Regulation 2018”.
Acting on advice from Mr Lindsay, the mayor wrote that the survey, which was prepared by consulting surveyors, “is not government information, per se”, citing and providing numerous links to the GIPA Act.
The mayor rejected Ms Cairns allegation that Mr Lindsay’s “requirement for a GIPA formal access application … was a ‘delaying tactic’”.
“Rather, as discussed above, it would appear to adhere to the legislative requirements…” he wrote – – as it turned out, the survey was emailed to Ms Cairns on May 12.
The mayor also objected to Ms Cairns’s “‘re-request’ [for] documents of CVC that you have already received”.
“As such, we think that it is reasonable that you nominate which of these documents you have not received in the past,” Cr Simmons wrote.
“These will be provided to you in redacted form—i.e., complying with the legislation—within three working days.”
They weren’t.
On June 28, acting general manager Laura Black wrote to Ms Cairns, advising that “all matters pertaining to development issues relating to the property subject of the DAs were resolved at the … June 2021” CVC meeting and that “requests for information concerning these developments would no longer be accommodated”.
However, Ms Cairns persisted and lodged a formal GIPA request.
On July 7, CVC advised Ms Cairns that her “application was assessed as not valid on the basis of section 51 of the GIPA Act” and told that “dealing with the application would require an unreasonable and substantial diversion of the [CVC’s] resources”, and that Ms Cairns “has previously been provided with access to the requested information under this act”.
On July 13, Ms Cairns lodged a request with the IPC to review CVC’s decision.
On July 29, Ms Black wrote to Ms Cairns, referring to the circumstances as she saw them.
“…given that on 28 June I excluded council staff from interacting with you about any matters in relation to … Gumnut Road Yamba, I have decided that council staff, including myself, will not interact with you, except in relation to … a genuine emergency … [or] electoral matters, for a period of six months,” Ms Black wrote.
“I advise you that this takes effect immediately and will be reviewed on 1 February 2022.”
As a result, Ms Cairns is now regarded by CVC as an ‘Unreasonable Customer Complainant’ [UCC].
On August 2, Ms Cairns lodged a formal complaint against Ms Black with the general manager, Ashley Lindsay, and mayor Jim Simmons, arguing that CVC had not acted “in accordance with Council UCC Policy”.
“We fail to see that we are unreasonable complainants – we totally object, and we are feeling intimidated and threatened in relation to the wording of Ms Black’s letter and her actions, to completely ban us from any interaction with council…
“It appears Ms Black is really pressuring [us] and appears to be victimising us, when stating three times [that she was] ‘guided by the Office of the NSW Ombudsman’.”
On August 6, Mr Lindsay wrote to Ms Cairns regarding her complaint about governance director Laura Black, stating he had reviewed Ms Black’s “decision to invoke Council’s UCC policy” and that he supported her decision.
“I believe your correspondence with council meets the definition of ‘unreasonable persistence’ (in accordance with the UCC policy) on a range of issues and, as a result, your conduct has had a disproportionate and unreasonable impact on our organisation, staff, services, time and resources.
“I am sorry that you feel victimised but that is certainly not the intent of taking this action.
“In my role as general manager, and in this case, Ms Black in her role as the acting general manager, [I] have a responsibility to ensure the wellbeing of individual staff; and if we continued to allow your ‘unreasonable persistence’ to continue we would be negligent in our role with council.”
On October 14, the IPC recommended that CVC “reconsider its decision by way of an internal review” of its assessment that Ms Cairns’ GIPA request was not valid, writing that CVC’s “decision does not provide adequate reasons as to what [its] assessment is based on.
“…It is not enough to merely assert that processing the application would require unreasonable and substantial diversion of resources,” the IPC regulatory officer wrote.
“…[CVC] must demonstrate they have balanced factors favouring access to the information for the Applicant against the impact on their resources.”
The IPC recommended in its nine-page assessment that CVC “take into account the guidance in this correspondence in any future decision making under the GIPA Act, as well as consider providing staff training with respect to GIPA and administrative decision making”.
On October 29, CVC notified Ms Cairns after completing the internal review, writing, “I have concluded that the application being assessed as not valid was incorrect, as the GIPA request met the requirements of the GIPA Act Section 41(1).
“As such, a revised Notice of Decision will be provided to you as per the time parameters provided in the GIPA Act, i.e., within 20 working days of this correspondence.”
The Independent emailed a series of questions to Mr Lindsay, asking why Ms Cairns’ complaint was not included in the October governance report to council; will CVC lift its UCC action against Ms Cairns, given the IPC has found in her favour; why does she have to wait up to 20 days for the notice of decision; and, if CVC would apologise to Ms Cairns, as suggested to Mr Lindsay by Cr Toms?
Mr Lindsay replied, “I don’t think it would be appropriate for me to answer any of these questions.”
On Friday November 5, Mr Lindsay emailed Ms Cairns, Cr Toms and the mayor, Jim Simmons, advising that he is “happy for Mrs Cairns to contact” CVC’s manager Organisational Development.
“As you would know the GIPA application was submitted to CVC whilst I was on sick leave, and I wasn’t aware that the application was rejected,” he wrote.
“Clearly, this shouldn’t have happened, as the application should have been dealt with in accordance with the GIPA legislation.
“Mrs Cairns, please accept my apologies for how this GIPA application was dealt with.”