Editorial: Merriwa-Willow Tree Road Damage Control

Filed in Just In, Opinions by August 13, 2020

TODAY scone.com.au was advised our request for the geotechnical report on the Merriwa-Willow Tree Road was denied under the government information public access (GIPA) process, because Council deemed the report not to be in the public interest.

Mind-blowing considering the clear public interest in this matter from the farmers who use the road and are now saddled with considerable expenses diverting livestock transport for the next three years, the ratepayers throughout the Shire who want to know how their Council has botched a road to the point where it will cost them at least another $7.5 million dollars of debt or the national audience reached by A Current Affair who want to know how millions of their taxpayer money in federal and state grants were wasted. 

Clearly there is plenty of evidence that the public are very interested in this matter and absolutely have the right to know how their public servants came to squander so much public money and leave the road in worse shape than they found it. 

In the court system suppression and non-publication orders can be granted when the court deems there are factors which outweigh the public interest, but factors need to meet a high bar and be substantiated.

In matters of the court, the media are actively involved in these decisions, are privy to the evidence for the application and can present arguments against the order or elect to support the order.

There are many cases where we have argued against an order and the matter has remained in open court and others where, after hearing the evidence, we support the argument for a suppression or non-publication order.

The reasons for and against are clear, detailed and transparent.

However, the reasons for Council rejecting the GIPA application for the geotechnical report are vague and bureaucratic.

With so much clear public interest in this matter the factors that are weighed against releasing the document have to be greater than the public’s right to know and the fundamental specific reason that has outweighed the public interest is unclear.

The Council does have the right to refuse to release the document if it exposes Council to legal risk.

Equally it could be refused if Council is considering legal action against parties involved with the project and the document may form part of the legal case.

Another reason could be that the report is more than a simple infrastructure report and has included information about individuals which are potentially defamatory. 

However, in those cases the names and job titles which can identify an individual are simply redacted from the document. 

To clarify the fundamental reason behind Council not releasing the document, we asked if the document was of material legal significance to Council, but we did not get a direct answer. 

Instead we were simply advised of the process to appeal Council’s decision, so we have put in a request to the Information and Privacy Commission’s Ombudsman to clarify the reason for refusal.

Should the document be legally sensitive and there is legal action taken by or against the Council, the document can be subpoenaed, becomes evidence in the legal proceedings and is then available through a court document request.

For what should typically be a stock standard infrastructure report, this geotechnical report seems to be highly sensitive and since there has arguably never been so much public interest in the construction of a road, claiming it is not in the public interest is laughable.

We may not have been able to access the document yet, but it does sound like great reading and we will wait for the opportunity to access the report, either through a review by the Ombudsman or through a court application if it becomes part of legal proceedings.

Refusing to release the document, just heightens our interest and the public interest in what the report contains.

Yours sincerely,

 

 

Elizabeth Flaherty

Editor, scone.com.au

 

 

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