Information access Case Note - Section 110 restraint orders Pittwater Council v Walker  NSWCATAD 34 and Palerang Council, Queanbeyan City Council and Goulburn Mulwaree Council v Powell  NSWCATAD 44
View full decisions here Section 110 restraint orders Pittwater Council v Walker  NSWCATAD 34 and Palerang Council, Queanbeyan City Council and Goulburn Mulwaree Council v Powell  NSWCATAD 44
What you need to know
This year, in the first cases of their kind, the New South Wales Civil and Administrative Tribunal (NCAT) made orders to restrain the making of unmeritorious access applications.
The object of the Government Information (Public Access) Act 2009 is to open government information to the public to maintain and advance a system of responsible and representative democratic government.
Recent decisions by NCAT provide authority that this right of access is not absolute and should not be abused.
The decisions in Pittwater Council v Walker  NSWCATAD 34 and Palerang Council, Queanbeyan City Council & Goulburn Mulwaree Council v Powell  NSWCATAD 44 show that in certain circumstances, public interest considerations favour orders restraining persistent and unmeritorious applications requiring an unreasonable and substantial diversion of resources by an agency.
NCAT has a discretion to restrain an access applicant through the operation of section 110 of the GIPA Act if it is satisfied that:
- there is a history of applications to the agency by the relevant person under the GIPA Act;
- the application lacks merit because the documents are not held by the agency, or to deal with them would require an unreasonable and substantial diversion of resources, or access entitlements have lapsed; and
- three or more such applications have been received in the two years prior to the application for the restraining order.
The effect of a restraining order is that a person cannot make an access application to an agency without first obtaining the approval of the Tribunal. If the person makes an application to the agency without obtaining that approval, the application is taken to be invalid and the agency will not have to process it.
In Pittwater, Mr Walker had made 29 access applications in the prior 15 months.
In Palerang, Mr Powell had made 37 access applications to the Councils and the Office of Environment and Heritage in the prior two years.
The Tribunal considered the GIPA Act as beneficial legislation and that it was necessary to balance the interests outlined in the objects to the GIPA Act against conduct that unreasonably interferes with the operations of agencies.
In Pittwater, the Tribunal’s order restrains Mr Walker from making any access applications to the Council without first obtaining approval from the Tribunal. The order remains in force until further order of the Tribunal.
In Palerang, the Tribunal’s order restricts the number of applications that Mr Powell can make in any two month period and restricts the number of documents and kinds of information that can be sought in any particular application. The order prohibits the use of abusive language in access applications, and restricts the making of access applications to be in writing and by post.
These cases illustrate that the Tribunal will balance the impact of persistent and unmeritorious applications on an agency’s ability to respond to all access applications it receives.