NSW Ombudsman confirms no local council charges for access under LGA

The NSW Ombudsman’s Office on 21 March sent an email to local council general managers drawing attention to a new information sheet on issues associated with access to documents under Section 12 of the Local Government Act. The information sheet reports the findings of a recent investigation and concludes that there is no legal basis for a council to charge for access except a reasonable copying charge (which should be in the range of 25-60 cents a page.

The Ombudsman says that recommendations have been made to the Minister for Local Government to amend Section 12 to authorise charging of a reasonable retrieval fee for documents held in storage, but until (and unless) the Act is amended, there is no legal basis for such charges. The Ombudsman’s views are consistent with the Department of Local Government Circular 02/54 “Charging a Retrieval Charge for providing public access to council documents”.

Many councils have reviewed or are reviewing information access policies. A working group established by the Local Government Governance Network is also close to completing a model statement of policy and procedures for consideration.

In our view it is open to a council to indicate that some documents will not generally be available under Section 12, on the basis that disclosure of documents containing certain specified information will usually, on balance be contrary to the public interest. A council could also adopt a policy position that some broad non specific requests for documents will not be dealt with on the basis that the work involved in dealing with such an application (at no charge other than reasonable copying charges) would substantially divert resources. As a result dealing with the request, and provision of access to the documents sought would be contrary to the public interest in advantaging one applicant at the expense of all ratepayers and because it would reduce the time available to deal with other requests.

Any application, of course, would need to be dealt with on its merits.

A council might also legitimately charge for any service offered to all members of the public to undertake research and provide a report on a particular matter where such a service clearly goes beyond providing council documents for inspection.