FOI and copyright for planning matters

NCAT decides plans subject to copyright for FOI 

InSandy v Kiama Municipal Council [2019] NSWCATAD  the Appeal Division of the NSW Civil and Administrative Tribunal decided that plans and reports associated with a planning application were subject to copyright would be infringed if the Council provided the applicant a copy under freedom of information legislation.

The applicant owned land adjacent to a property on which a development application for an abattoir had been made to the Council.  A copy was sought of those documents held by the Council about the planning application.   The applicant wanted copies of the documents, and not just to view the documents, because he wanted to obtain legal advice about the proposed development for the purpose of deciding whether or not to commence legal proceedings about the development.  He argued it was not practicable to seek advice if he could not provide his lawyers with copies of the documents.

The documents comprised a number of reports prepared by consultants and plans associated with the development application for the proposed abattoir site.  They included surveys, storm water drainage plans, and building plans.

Access by providing a copy was refused.  Instead, the Council agreed to provide "view only" access on the basis that the documents were protected by copyright.  The applicant sought review from the NCAT.

The NCAT determined that the documents were original literary or artistic works within the meaning of the Copyright Act 1968 (Cth).  Accordingly, reproducing or copying the work, or authorising such an act, will infringe copyright unless an exception applied.

The exceptions considered in the case, and which were not found to exist, were:

(a)  whether providing a copy is fair dealing for the purposes of criticism or review (s 41, Copyright Act); or

(b)  whether reproduction was for the purpose of judicial proceedings or professional advice (s 43, Copyright Act).

The Tribunal found that the relevant purpose of copying to consider is that of the Council, not the applicant's purpose.  The Council's purpose would be to fulfil its obligations under the freedom of information legislation which, it found, did not come within the fair dealing exception in s 41 of the Copyright Act.

There was no judicial proceeding on foot, so s 43 did not apply.

The exception in s 43(2) only applied if the provision of the copy was for the purpose of the giving of professional advice by a legal practitioner, it does not extend to dealings for the purposes of seeking legal advice.

The NCAT upheld the decision of the Council to only provide "view only" access.  It concluded that the Council would infringe copyright if it reproduced, or authorised the applicant to reproduce, the information in the documents in question.

Victorian Councils may find this decision interesting given the frequency with which applications are made under the Victorian FOI Act for planning and similar documents outside periods where such material might be open for inspection.   Section 23 of the Victorian FOI Act provides that access to documents in the form requested by an applicant can be refused and access given in another form where to provide access "would involve an infringement of copyright subsisting in a person ...other then the council."

Whether or not the VCAT or Victorian Information Commissioner would take a similar approach stands to be tested and there is no guarantee that would occur.