The purpose of this Policy is to facilitate timely access to Council documents by members of the public.
In order to comply with the requirements of the Acts and Regulations governing the actions of Local Government, and recognising the complexity of legislation governing the collection, dissemination and use of information gathered and stored by Council, the following principles will guide decisions on public access to Council documents:
Section 12 (1) of the LG Act entitles everyone to inspect the current version of the specified documents free of charge.
Section 12 (5) states "the Council must allow inspection of versions of the documents other than the current and immediately preceding versions if those other versions are reasonably accessible".
Section 12 (6) further states "Council must allow inspection of its other documents free of charge".
Besides the documents specifically mentioned in section 12(1) of the LG Act, members of the public may inspect or copy any other Council document subject to the constraints outlined in section 5 of this Policy.
It should be noted that section 12 (1) allows inspection of applications under Part 1 of Chapter 7 of the LG Act for approval to erect a building, and associated documents and development applications within the meaning of the Environmental Planning and Assessment Act 1979 and associated documents. Subject to this Policy, "associated documents" is taken to mean the application and supporting information submitted with or later as part of the application process, plans and specifications (except internals), letters and advertisements used for public notification of the application, objections and submissions received, report/s on the application's assessment, made to the person or body responsible for the application's determination, any notice of determination, any other internal working document, and any other document held by Council created as part of, or in support of, the application process.
5. Access to public registers
Generally information contained in Council's Public Registers will be made available having regard to Council's Privacy Management Plan. Council holds the following Public Registers:
Act
Register
Local Government Act:
Section 53 - Land Register
Section 113 - Records of Approvals
Section 449-450A - Register of Pecuniary Interests Section 602 - Rates Records
Environmental Planning and Assessment Act:
Section 100 - Register of Consents and Approvals Section 149G - Record of Building Certificates
Protection of the Environment (Operations) Act:
Section 308 - Public Register of Licences Held
Impounding Act 1993:
Section 30 & 31 - Record of Impounding
The Public Officer or his/her nominee will make a determination on documents requiring the public interest test. In essence the test involves weighing, in each particular case, the benefit to the public against any possible adverse effects in allowing inspection, including whether it would have an adverse effect on the Council, with a general preference to allowing access.
The test for public interest will also be made in consultation with any policies and guidelines issued by the Department of Local Government, the Office of the Ombudsman and the NSW Premier's Department in relation to FOI and access generally.
In general it is considered that it might be contrary to the public interest to allow access to the following types of documents:
Council maintains that the identity and contact details of a person who has complained about a barking dog, excess noise, unauthorised development, etc is likely to be determined to be contrary to the public interest and exempt from disclosure. Council has a duty of care to protect the identity of complainants acting in good faith who draw Council's attention to actual or potential breaches of law for which Council has enforcement responsibilities.
In applying the public interest test one must take account of the information protection principles, the Privacy and Personal Information Protection Act 1998, the Privacy Code of Practice for Local Government and Council's Privacy Management Plan.
The Privacy and Personal Information Protection Act 1998 and the Privacy Code of Practice for Local Government give people the rights of access to certain personal information.
As a general principle the protection of personal information is a function of Council to ensure that breaches do not occur when information is provided but it recognised that it is only one factor in determining whether the public interest is served in the release of information. Sections 12(1) and 12(6) of the LG Act will override the PIPPA with respect to information disclosures to third parties.
Council's Privacy Management Plan refers to the details of Council's implementation and interpretation of the privacy requirements.
As well as the right to inspect, members of the public have a right to a copy of the document inspected for a fee except for the following, which cannot be copied:
There is no prescribed charge for the inspection of a Council file and therefore access to a file is free. The Act allows a Council to charge reasonable photocopying charge where copies are required. The Council's copying charges as contained in the current Fees and Charges Schedule of its Management Plan will apply to photocopies. The basis and level of fees and charges for photocopying will be reviewed annually.
Section 12A of the LG Act sets out the process for reviewing restrictions to access. Where the Council decides access to information should not be given, the applicant must receive written reasons for the restriction. These reasons must then be made publicly available and must be reviewed by Council no less than three months after the restriction is imposed.
Council is required to carry out further reviews when requested by the applicant. These reviews can occur no sooner than three months after the previous review.
Restrictions must be removed if Council finds that there are no grounds for the restriction or if access to the information has been obtained under the FOI Act. It is not necessary for Council to review any restriction once it has been removed.
A report will be provided to Council each quarter, if any refusal has occurred during the quarter. The report will contain details of restrictions that staff have placed on access to information and the reasons for the restriction. Once the three months has passed since the original application was made, the report will also include details of the review as to the appropriateness of lifting the restriction. The report will also include details of applications for lifting the restrictions that have been made subsequent to the original three-month review.
All Council staff are to encourage in the first instance access to information through the use of section 12 of the LG Act rather than the FOI Act. If the request is obviously an item that may not be available under s12 then the person should be advised on his/her rights under the FOI Act. Applications for access to personal information in accordance with sections 13 and 14 of the PPIPA be dealt with under this Policy.
To facilitate access applicants must complete an application form and must be specific about the information they are wanting to access to enable the correct documents to be identified. An applicant may be required to make a statutory declaration. This might occur if the document contains sensitive personal information/details.
Requests from members of the public for access to Council documents will be dealt with as follows:
Time is needed to locate files and check for exempted material and privacy matters. A section 12 request will be dealt with, as soon as practicable, (and, in any case, within 15 days) after it is received.
If the matter is complex and reply within that timeframe is not possible, we will contact you to tell you what action is being undertaken.
The Policy will be reviewed within 12 months after election of a new Council.