Website Main content
Website Secondary navigation Public access session

Jim Bright - 26 February 2019

Jim Bright addressed council regarding Albert Ryan Park at the Ordinary Council Meeting 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.

Council's reply

NSW Office of Sport is the body that determines what information it will release under the Government Information (Public Access) Act 2009 (GIPA Act) when it receives a GIPA application. Council can make comment to the NSW Office of Sport under the third party consultation process however, the ultimate decision to release the information that is requested is with NSW Office of Sport.

On the 21 January 2019, the NSW Office of Sport provided its updated decision on the release of documents. The decision did not change as the original decision was to release certain documents with redaction. However, NSW Office of Sport did decide
to make further redactions.

Council did not lodge an application with the Information and Privacy Commission nor the NSW Civil and Administrative Tribunal relating to the NSW Office of Sport review decision. The NSW Office of Sport is required to wait the expiry of the mandatory third party review rights period set out in the GIPA Act, notwithstanding any comments from Council.

Councillors were briefed on 5 March 2019, involving the third party consultation for two GIPA applications sent to NSW Office of Sport.